Reflections Of A Lawyer

MONOL OG UES , CAS E S TUDIES & S TR ATEG IES

REFLECTIONS

A Monologue on Topics Of Interest Reflections on important issues often escape serious attention by a young man. I use the word ‘serious’ because we often think about issues - life, god, health without real attention and evaluation. Since October, 1998, I’ve spent a great deal of time thinking about such issues. The beginning point of an internal Monologue. The on-going process makes me put down these thoughts.

P. 1 (2006-present)

Diabetes is an interesting disease. In the first years, particularly for a boy, the disease is pretty much defined by one fact - taking a shot. Admission to hospital, after diagnosis at about the age of 11, was to stabilize blood sugar and educate mother and myself on care at home.

spection. One day I was presented with an orange and a syringe. The nurse told that I would learn how to give myself an injection by practicing the process with an orange. I practiced getting the insulin (actually water) to the syringe and so on. At first I hesitated inserting the The method of introduc- syringe in to the orange, but after some time I action of injection was especially funny, even if only complished the task. with many years in retro- Within a short time, I was

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shooting that orange with a great deal of energy. But the nurse wanted to move to the real deal. I prepared everything without error. I pinched an area of my left thigh and moved the syringe in to place. As far as I could tell the only problem was not moving my hand. I just could not move. The nurse was patient and encouraging. But I still did not move. Then, the nurse pushed down. I had accomplished, even with help, my first shot. The only difference over the years was the number of injections per day. At first, and for many years I took one shot per day. But as the years passed, the nature of the insulin formulation improved the theories on how to deliver the drug changed. Over the years I kept increasing the number of injections until I got to 4. I took 4 injections for several years and then got the chance to go on the pump. I am now using a third generation pump. It will compute dosages by taking information from the meter and by use of an algorithm inside the pump and the two compute to each other by RF. And to think it all began with a orange!

If I do not attend church, God will understand. My stay here is short and I will have a long time to spend with Him. (This is inspired by ‘’Didn’t Go To Church Today” by Ogden Nash) Religious institutions around the world have forgotten, as their actions show, that all God ever asked was awareness of the universe. It is a puzzle, a gift, a poem. I spent many hours, during sleepless nights, thinking about the existence of God. Most of this time was in pain. All the thinking caused me to an inescapable belief. I hope to explain a moral process, which is my simple effort to say I believe without reservation in the infinite and present day existence of God in every fiber of every person, rock, planet, star, etc. God, The game is all your way, the secrets and the signals and the system; and so, for the break of the game and the first play and the last, Our prayer of thanks. By Carl Sandburg (1917)

Monologue My stay here is short

Case Stories First Time

Life. God drew the plan. A picnic. Viewing a mountain stream or pool. A warm ocean’s sand.

The senior litigation partner reached out his hand, holding a modest size file. “This will be a good one for your first

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time.” My first jury trial. Fredrick-son v. Sears, Roebuck & Co. was a slip and fall. Nancy tripped on the underside of a dressing room folding door. She fell. It wasn’t much of a fall, but osteoporosis (an abnormal loss of bone integrity resulting in a greater chance of fractures) meant a fractured hip, not just an embarrassment. I had never tried a case. I’d never even seen a trial. I stressed this, repeatedly, to the partner. He said he’d answer any questions and be there to second chair me. The case came to trial. The partner never showed up. I was alone. As if this was not bad enough, as the plaintiff ’s attorney, I was first on every stage. You can imagine this combination of never seeing a trial, and going first, left me feeling sick. There was one defining incident for me, the rookie. The first thing in the trial is jury selection. I got up and did my best imitation of a trial lawyer. I asked questions and made notations of their answers. I had no reason to challenge any of them, in fact, I could not have gone though this extremely important action if needed. I sat down. The defense began. Part way through he successfully challenged a juror. The defense

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lawyer sat down. He looked at me. Then the Judge looked at me. If it had not been for a jury, a client, and witnesses, I’d thought it was funny. But. . . I had a sinking feeling; and, the real trial had never even started. The Judge made a couple of neutral comments and gestures and I figured out that I was to voir dire the new potential juror before the defense continued.

On the positive side, another litigation partner in the firm stopped by the trial and asked the Judge if everything was OK. The Judge wrote him a note (above) , that said, “the kid’s got talent.” I lost the case but learned a key rule. If a partner comes up to a young lawyer and says he has a great case for you to try, the translation is: the case is so bad it has no chance of succeeding and he won’t take the loss!

P. 3 (2006-present)

Strategies The Rules In law school there is a recurring theme. Use every rule to object. If there was opportunity under the code of cvil procedure to object to a request for discovery you object. During the final exam, you object. In the ‘real’ world, you object. Evidence class, its hearsay rule and its 26 exceptions, offered a great pool of objection material. In 1984, Bob White second chaired me as lead on a suit against the Crawford County Sheriff ’s Department and one of its officers. The suit was invasion of privacy and intentional infliction of emotional distress. It was easy for the plaintiff. But we represented the defendant. Our man had kicked down the front door on his way in to serve a subpoena. One of the rules of the Supreme Court requires all physical pieces of evidence to be identified and numbered before the trial begins. During the examination of one of the witnesses, the plaintiff ’s husband, marched through the door of the courtroom

with the actual door. The dramatic manner of these events took place like a TV show. Everyone (including me!) looked surprised and more than a little bit perplexed. The door would show, according to the plaintiff, the force of the defendant’s boot and the violent manner the door was broken down. I had no idea what to do, so I started objecting - strenuously. I argued that the door could not be allowed because the rule said it was not on the exhibit list. And the Judge agreed. We were given the option as to whether the door would be allowed. As we stood by the door, White asked me to look at it. There was nothing wrong with it. I stood there looking at the door and slowing seeing what White’s experience had seen from the start. There was no damage to the door. We could use the door to really hurt the plaintiff ’s credibility - but only if we don’t follow the rule. I very successfully argued that the absence of damage to the door showed the absence of damage to the plaintiffs. Law Student vs. Trial Lawyer.

Monologue Art of War Every lawyer who does not closely read “The Art of War,”

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by the Chinese general, Sun Tzu, in about 400 B.C., will not understand litigation. The book is Tzu’s theory of war, identifying the critical subjects. He wrote about 13 topics, which included offensive strategy and weakness & strength. To this day it is considered a seminal book on military strategy and is widely used throughout the world. Recently, it has become common for business students and executives to read the book and apply its principles to business. I have not found such attention by lawyers in the literature about Sun Tzu. This is a terrible oversight. It should be required reading.

out fighting is of great use in litigation and other pursuits. In each chapter you will quickly forget the subject is war. Whatever your occupation, the ‘lessons’ of the book will jump out at you and apply. The subject matter goes to stealth, evaluation, maneuvering, strategy, weakness as well as strengths. Helpful in all jobs, it will help you too if you give it a chance. A second point is limited to legal practice. There are not

There are two, unrelated, points to mention. First, an examination of the chapters in the book show that Art of War quite often has nothing to do with fighting, unless things are very much in your favor. This vision of war with-

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Even so-called trial lawyers hardly try a case. As a result lawyers do not develop skills at much higher levels of performance. Do you want to have heart surgery by a doctor who barely performs operations? Without trials the law fails to develop through application. The ability to use rhetoric, drama, timing, combined with a lack of proper preparation is all but dead.

“War is a matter of vital importance to the State . . . It is mandatory that it be thoroughly studied.” This is Tuz’s opening sentence. While not possessing the ability to write a true and complete summary of Tzu’s thoughts relating to the law, someday I hope the job gets done.

War” that would benefit these lawyers. However, in the absence of preparation, cases are not tried because of fear. I know from experience it’s always easy to explain to a client (or boss) reasons to settle. The manner in which our law develops is based on trials. Appeals from trial results are reviewed by appellate courts and become law. No trials, no law development.

Picture at Brandon York’s High School post-graduation party. (2005).

enough trials. I think there are two resulting characteristics to this status. Initially, lawyers do not prepare their cases. There are many areas within “The Art of

The Art of War is about armed conflict. However, please allow me to paraphrase Sun Tzu: The development of law by trying cases “is a matter of vital importance to the State” and “is mandatory that it be thoroughly studied.” The settlement of cases, on the other hand, causes complicity among lawyers; fails to promote trial skills; the system denies necessary precedent material, and, it hurts the

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doctrine of stare decisis. And, it fails its vital importance to the State.

Case Stories Saved by a MI A non-litigation partner asks my help in trying a contract case that involves a very important oil and gas client. Apparently he contracts with a large hotel to redo a suite of rooms to the tune of $60,000. But once the work is done, our client refuses to pay. Even to inexperienced youth, the first meeting with partner and client is a disaster. The partner exudes complete emptiness on litigation. Viewing the client leaves me queasy. He is flashy all-over. He dresses in an expensive suit, wearing significant amounts and types of gold jewelry. He is flush with money and fully able to pay the bill on a remodeled room.

“Time is on my Side” Jimmy Norman lyrics Rolling Stones Performed

With but a few sentences I know he is a crook with no use for the truth. He can not answer questions, but wants us to tell him answers. I tell the partner we are in trouble.

P. 5 (2006-present)

He does not appear to hear me. And I emphasize the client will not appear as King Tut. Although the partner does not understand he agrees ‘to take care of it.’ The trial starts today and I am in the office early. I am frantic - the partner is not here. My head drops as the client arrives in his best golden finery. I will tell the Court our poor client could not possibly have the resources to enter such a contract. It is a trial to the Court. I am thankful. Maybe the Judge likes gold jewelry on men. The plaintiff ’s first witness is the plaintiff. For some reason his lawyer seems to take a long time explaining how special his client is to the hotel industry. This goes on and on. The plaintiff began his testimony in a calm and convincing manner. He discussed every thing but the details of the agreement with the defendant, our cooked client. As time went on he got to looking ill, sweating and began to get shaky. His testimony starting contradicting itself. I was starting to wonder if our client was honest. Then his attorney went up to the stand and then to the bench. They asked for a short continuance. We walk to the hallway. After a few minutes we walk back to

the courtroom. At first I didn’t see anything. Suddenly I see the plaintiff in the juror box, tie down, shirt undone, leaning over the rail. I take-off for the judge’s chambers, when several people run out after calling paramedics. The plaintiff is having a heart attack. The paramedics come and off they go. I could not believe my bad luck. If he waits until my cross-examination, I can tell everyone my cross caused the guy to have the MI. Final result: BIZARRE. The plaintiff survives. I try to settle the case, but he refuses our offer. Before the law firm could get the case back on the docket the plaintiff dies. The partner took no pre-trial testimony, and the trial testimony did not get in to any facts relevant to the contract. No documents are introduced. The case just goes away. Crooked Clients 1 and Good Guys 0.

Strategies Tonkovich Ab u s e o f p os it io n is a wicke d vio l at io n o f s o cie t al r u l e s . Dad The Kansas Attorney General asked me to represent several law professors at the University of Kansas Law School.

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The prissy professors are part of a total group of about 30 defendants in a civil rights case brought by Professor Tonkovich. Despite tenure, he is fired by the University. The professor’s dismissal stems from accusations that he seduces, bribes and extorts sexual acts from L1 women.

An honorable teacher has a special place in relation to students. There is a natural disappointment when a colleague is abusive toward a student in his charge. The education of others, passing information to a new generation, becoming a mentor at times, is a privilege.

After losing in the District Court, he appealed to the Tenth Circuit in Denver. After losing there he went back to the District Court, on other grounds, but fails again.

The case goes to the Tenth

On one level the case is about sexual abuse and violation of Federal civil right laws. It is one of the most legally demanding cases I handled. But the case is not important as a lawsuit. It is “a matter of vital importance to the State” for another reason. The case’s importance is based on a failure at the heart of any society. We all meet ‘important persons.’ Nearly every such person is important only within a quite small area and with a minor number of people. If the person I speak of is set upon a larger stage, he is quickly of no importance. Tonkovich’s initial small area, is the KU School of Law. In his small area as a tenured professor, he is quite an important person in terms of grades, referral for law journal, summer clerkships and first jobs. Otherwise he was a small man on a small stage.

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Therefore the abuse of such a position is heinous. The apparent abuse of power and position, in a degrading manner, strikes at the notion of fairness. This man, within his small area of importance, was a large failure. He lost, but even in losing he was abusive. First, he made the Tenure and Review Committee go through extraordinary effort, time and expense to review the Law school’s Dean. After losing there, he filed a lawsuit. It was over 100 pages long. There were over 30 Defendants. It took lawyers from many firms to represent all these people. The expenses were large.

Circuit a second time. It was finally over. It must have cost in the high six figures in the end. He essentially raped L1 students and then caused all this time and expense. He is a coward and worse. He was barely punished. Life may place you in a position of importance. Will you remember the smallness of the area? Will you think about the responsibilities of such a position? Will you look at, and act as, your position is an opportunity to do good?

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Monologue Process - Ontology I think of Process Philosophy as a means of explaining important things, like God, history, future, Heaven/Hell and the like. There is a place where the sidewalk ends And before the street begins, And there the grass grows soft and white, And there the sun burns crimson bright, And there the moon-bird rests from his flight To cool in the peppermint wind.

Where the Sidewalk Ends By: Shil Silverstein

Ontology is the branch of metaphysics dealing with the nature of being. This is my belief system.

or Boom of life, is God. God is the initial, i.e, Alpha UPP. The Alpha UPP (the Big Bang), creates an infinite number of UPPs. Since God exists in the Alpha UPP, all subsequent UPP contain God. The first UPPs intersect with each to create a set of intersecting UPP. Since God is contained in all initial UPP, then all first level of intersecting UPP contain God. This process has gone on, previously and in to the future infinitely. A UPP can not lose a part of itself, such as God, because that would be to say the lost part never existed. Thus, each new UPP that is formed must contain all that is contained in the prior series of UPPs that make up the new UPP. And this contains, in part, God.

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The sheer complexity of these levels of UPPs lead to galaxies, plants, suns, life as we think of it, all begin to emerge. The UPPs, to continue my previous point, each contain God. It is a much more comprehensive view of evolution. Perhaps this is a macroevolution and the Darwinian theory of evolution/natural selection is a micro-evolution viewpoint. All current experience, including those we do not personally perceive, perhaps because it happens far away, represent the sum total of all previous actions. At the point of the present, the process continues. This process is not fatalistic. This is a very simplistic view of Process of Philosophy. Please allow me to give some additional thoughts.

Every event today (or in a scale of time, a nanosomething or other) represents the present combination of all prior events. I call this a Universal Process Point I define ‘event’ as a single occurrence of a process. I include ‘process’ in the definition of ‘event.’ Let me try to bring the two terms together. God created the universe through an initial act. The scientific community, at this time, calls this moment the Big Bang. The scientific definition fails in at least one critical particular. The spark,

continue intersecting.

An example: prior UPPs lead to the birth of my mother and father. As the lives of my parents continued, UPPs lead to my birth and etc. All these organic beings are made up of the intersection of UPPs.

The levels of intersecting UPPs become inestimably complex as the infinite UPPs

In the case of human birth, I see UPP as follows. Neither sperm nor egg exist with experiential UPP, but consists of genetic material. The moment of conception is an UPP. From this point forward life exists. Life consisting of God.

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There is nothing in any of this suggesting fatalism. People have free will to act towards themselves or environments or others in their own manner. Prior experience may be predictive, but will not be determinative.

When the UPPs created by the deceased person are of a positive nature, in other words a life of good character, we believe the person is in heaven, that is a place where his/her actions are rewarded. Heaven is infinite because the positive UPPs are infinite.

God, the alpha UPP event is the ‘explosion’ of subsequent UPP and ‘forward movement’. This infinite movement is “time.” Reality is our perception of time, i.e., UPP carry reality to our senses.

On the other hand, the meanings of that person’s life may be of awful disrepute and we say he/she is in hell. Again, hell is infinite because the negative UPPs are infinite.

Process-Heaven & Hell

Process-Soul

I further believe the ‘process,’ of this continuing series of events, explains heaven and hell.

As you can see from what I have written, the concept of a soul and eternity are also answered. The process of UPPs never ends, therefore, the process is infinite.

Imagine that a person dies another UPP. People will draw conclusions about the person. His sense of right/wrong, honesty, endeavor. The immediate family will continue to act on those memories, e.g., naming a child after the person, etc. The person’s possessions are distributed with the stories that relate to the late individual. The UPP that made up that person flows through the children, the grandchildren, and so on. All that has ever been makes up the present and is passed along, through the present, to the future.

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Although all of nature is part of, and expressed by, Process, there is no denying a uniqueness of human beings. Process is infinite, and the nature of its infinite essence is unique for human beings. This has been referred to in Western thought as a soul. The simple fact is this. I am not smart enough nor educated enough to properly set out Process Philosophy. But my effort is not to create an academic paper. I want you to see that I believe in God and that I believe He is in all things.

Process-Evolution After arguing Process explains the existence of God, I also want to add Process Philosophy is consistent with Darwin’s view on evolution. Essentially, it was Darwin’s view that species develop over time from a common origin and this is accomplished through natural selection. The concept of development over time from a common origin is almost the definition of Process Philosophy. Evolution has been at the center of a national debate on educational standards for natural sciences. Christians want intelligent design; while most all scientists, educators and general public believe in evolution.

In the context of evolution, Process helps provide a fuller explanation. In my view of Process the Big Bang is the initial UPP. As time passes there is an infinite UPPs. Natural selection can be put in to Process terms. In the case of life, the better UPP

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will support life development; and, would also explain why there could be jumps in development by the occasion of an exceptional UPP.

Process-Originators At this point I want to give you a sense of how the gurus of this logic think, to help you see a beautiful philosophy. These passages are very technical and are written by two of the leading minds of the Twentieth Century. It really doesn’t matter if my views are inconsistent, or conflict, with technical aspects of Process Philosophy. I have loved the concept of process since I studied Process in college from a professor who studied under Charles Hartshorn at the University of Texas. Hartshorne in turn studied under Alfred Whitehead. The abbreviations are: PR = Process & Reality Alfred North Whitehead 1929 MT = “Modes of Thought” Alfred North Whitehead, 1938 [PR 32 (21)] The ultimate metaphysical principle is the advance from disjunction to conjunction, creating a novel entity other than the entities given in disjunction. The novel entity is at once the togetherness of the ‘many’

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which it finds, and also it is one among the disjunctive ‘many’ which it leaves; it is a novel entity, disjunctively among the entities which it synthesizes. The many become one, and are increased by one. [”Whitehead’s novel intuition,” as Hartshorne noted; see below.] [PR 340-41 (223)] Each task of creation is a social effort, employing the whole universe. Each novel actuality is a new partner adding a new condition. [MT 137] [In the 20th Century] matter has been identified with energy, and energy is sheer activity; the passive substratum composed of selfidentical enduring bits of matter [atoms, as originally understood] has been abandoned, so far as concerns any fundamental description. [MT 145] [The] change of view occupying [the last] four centuries, may be characterized as the transition from [1] space and matter [more broadly, substance], as the fundamental notions to [2] process conceived as a complex of activity with internal relations between its various factors. A.N. Whitehead, Mode of Thought (1938) [MT 161] The one individual is that coordinated stream of personal experiences, which is my thread of life or your thread of life. It is that succession of self-realization, each occasion with its direct mem-

ory of its past and with its anticipation of the future. [MT 164] Thus, as disclosed in the fundamental essence of our experience, the togetherness of things involves some doctrine of mutual immanence. In some sense or other, this means that each happening is a factor in the nature of every other [later] happening. . . . The whole antecedent world conspires to produce a new occasion.

Fatherhood.

[MT 165] The only intelligible doctrine of causation is founded on the doctrine of immanence. Each occasion presupposes the antecedent world as active in its own nature. . . . It is the reason for the transference of character from occasion to occasion. It is the reason for the relative stability of laws of nature . . . Mere existence has never entered into the consciousness of man, [166] except as the remote terminus of an abstraction in thought. Bertrand Russell, one of history’s great minds and philosophers, begins with a body

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of common knowledge or what is assumed to be knowledge. From this body of data the main task of philosophy is to understand the world, to interpret the world. Logical analysis of the complex and relative concrete (b/c of memory of past events. Dad) to the simpler and more abstract (moving toward unknown future. Dad)

CONCLUSIONGod is real. Search Him out by whatever name you wish. Have a relationship with Him. Rejoice in Him. If all you believe is that He is the One who lit the switch to enjoin the big bang, rejoice. If He is the substance of the big bang, rejoice. If the Bible is right, rejoice. If we have it all wrong because finite minds can not conceive of infinite intelligence, rejoice. Process explaining ‘alpha and omega’ “Finally (after Whitehead considers time and space), there is deity, which is that factor in the universe hereby there is importance, value, and ideal beyond the actual. It is by reference of the spatial immediacies to the ideals of deity that the sense of worth beyond ourselves arises. . . . There must be value beyond ourselves. Otherwise every thing experienced would be merely a barren detail in our own sol-

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ipsist mode of existence. We owe to the sense of deity the obviousness of the many actualities of the world, and the obviousness of the unity of the world for the preservation of the values realized and for the transition to ideals beyond realized fact.” [MT 102] Here, in one passage, so beautifully stated is my world view: “The basis of democracy is the common fact of value experience, as constituting the essential nature of each pulsation of actuality. Everything has some value for itself, for others, and for the whole. This characterizes the meaning of actuality. By reason of this character, constituting reality, the conception of morals arises. We have no right to deface the value experience which is the very nature of the universe. Existence, in its own nature, is the upholding of value intensity. Also no unit can separate itself from the others, and from the whole. And yet each unit exists in its own right. It upholds value intensity for itself, and this involves sharing value intensity with the universe. Everything that in any sense exists has two sides, namely its individual self and its signification in the universe. Also either of these aspects is a factor in the other.” [MT 111]

Case Stories Wet Pants Plaintiff Part I Slip and fall cases are often under-estimated by both sides. The plaintiff thinks it’s always a cinch and the defendant’s insurance carrier always sees it as a waste of time and just wants to pay. The adjuster at The Travelers was different. I’d worked for him before and, while honest, he didn’t give in easy. This is the way it should be. As an aside, I am probably just as well off not working, because insurance companies no longer have the word, ‘fight’ in their vocabulary.

A sense of humor is part of the art of leadership, of getting along with people, of getting things done. Dwight D. Eisenhower

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Our case is quite strange from the beginning. The location of the accident is a grocery store in Parsons. An ample woman and a trailing husband rushes up an aisle and turns at the back along the open freezer to the right. She falls at the end of the aisle. Her case is so-so. But we find there is water under her, and this is confirmed by store employees. In addition she has a very bad fracture of the knee. She is treated by a very fine orthopedic surgeon whom I knew for many years. In my experience, he is just naturally, ‘proplaintiff,’ but not overly so and answers any question. There is a claim for lost wages. (See Part II). Off to Parsons I go for a look. There are two points of interest. The first is the condition of the frozen food counter. It is not leaking, has not been leaking and has not had maintenance. The second point is that the distance from the end of the aisle, where she fell, to the frozen foods counter, is considerable. The adjuster takes a disliking for this case and so it is proceeding to trial. Normally a plaintiff ’s lawyer

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takes the trial deposition of the treating doctor because doctors almost never appear at trial and the testimony is taken to be read to the jury. I was busy and did not review the medical records until the morning of the deposition. The medical records were pretty standard. But something stood out to me. The plaintiff has syncope (fainting) episodes. She is diagnosed about nine before the accident but not treated. I have a problem. Not seeing this detail before, it is too late to add any further medical records as exhibits, have my doctor see her or take a discovery deposition of her doctor to test a theory. So I went on to the deposition. In cross examination I ask the doctor to define some

terms, including syncope. I ask if treatment of medical problems is important. Then I go a little closer and ask if it is

reasonable to opine that the refusal to seek treatment means the problem continues, and he agrees. Therefore, the doctor agrees it reasonable to opine the failure to treat plaintiff ’s syncope means the problem continues to the date of accident. Now for the climax. The deposition is trial testimony so it stands. The testimony is from the plaintiff ’s own medical records and opinions from her own doctor. There is more to the doctor’s testimony. The plaintiff has syncope episodes and is untreated, continuing through the trial. A syncope produces a short period of unconsciousness. This explains the plaintiff ’s fall. But there is one last, and withheld, opinion. In the case of a syncope, a person can become incontinent. The doctor could not deny it is possible the plaintiff suffered a syncope, urinated and fell down. This accounts for all the facts, but especially the lack of water anywhere except under the plaintiff.

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The jury takes but 40 minute to return a verdict for the defendant.

Get your facts first, and then you can distort them as much as you please. Mark Twain

Strategies Stay Within Yourself We sometimes do more than can reasonably be accomplished on a task. This is called not staying within yourself. Maybe sports is the most frequent application of this saying. Regardless of the sport and said in whispers by TV commentators, it usually sounds like, “Mike, if Tiger can just stay within himself in this final round and not try to make up ground too quickly, he can still win this tourney. After all, he’s only 20 stokes behind with 4 holes to go.” H o l d fa s t to drea m s Fo r if drea m s die Life is a b ro ken-w inged b ird Tha t c a nno t f l y . H o l d fa s t to drea m s Fo r w hen drea m s go Life is a b a r ren f iel d Fro zen w ith s no w .

By: Langston Hughes I often dreamt to try a case, or part thereof, in some new or

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different way. I could see the result, but not quite sure how to make it happen. There were several times I could not keep myself from trying something in a closing argument. I always wanted to use Mark Antony’s soliloquy from William Shakespeare’s Julius Caesar. It takes place after Caesar is murdered. It was an often repeated use of three’s in a speech. It’s common now mostly with politicians. In Antony’s case he also turns the word ‘honorable’ around to mean ‘dishonorable’. It is extremely powerful. I wanted to use this soliloquy, to go outside the comfort zone, in a closing argument. I had a employment case and decided this was the perfect time to use it. I would compare the actions of the plaintiff to what he had said and turn ‘injured’ around to ‘uninjured.’ Good idea, but not on that date, by me. It failed. I think it was the worse closing I ever delivered. (I still won and that’s the only reason I use this case as an example.) But the real point is that I tried to go outside the comfort zone. I had to because that is what it takes to get better. If I had waited, been more patient, worked out the details more specifically,

maybe . . . You need to approach the edge with care and extra preparation. But, by all means, go there. It’s a thrill. My failed Mark Antony was a thrill. Stay within yourself, but think about being better and how you can make it happen. It will take risks, and maybe failures. Stay within yourself, but make “within yourself ” ever better.

Monologue American Government & The News Media The Constitution, with several references relevant for the media, is a sacred document, and must not be treated like a child’s new Christmas toy. The news industry was seen as the important ‘Fourth Estate’ that watched and reported facts. Ed Murrow, Walter Cronkite and others were center pieces in American culture and confidence.

The United States operates by the Congress and President. I always felt that Congress was the most important of the three branches. The House is the first to compile the tax laws. The Senate must approve judicial nominations

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and other Presidential appointments. Naturally it passes all laws for review by the President. FDR’s many terms during a depression and a world war put the President in charge. But that power never returned to Congress. The press was reserved with the President. As an example, FDR’s polio was never reported; JFK’s affairs were kept quiet. There was a quality of self-regulation.

The population of the ‘60s was encouraged to ‘turn on and drop out’. And the culture did. A lazy population forgot about reading and evaluation and just wanted to be told what to think. The media saw its chance for profit. The media became more brazen in its operation. Over the last 15 years news has become entertainment. A great example is the proliferation of 20/20 knockoffs. There is not a night that goes by with one or more of these shows.

With and after JFK, technology turned to TV. For example, the first television Presidential debate to be aired was Kennedy/Nixon. The pressure of TV news caused papers to close, mostly late afternoon papers. The Viet Nam war was the first uncensored war. There was a growing competition, between papers (mostly local) and TV (based on the 3 networks for national/ international news) for consumers. After TV mainly won that battle, the competition moved to the networks. As the competition continually increased, the need to be the first with the story took on national and international significance. The TV anchors became media stars.

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0 During this time, another, more deadly form of “news” was born: and, it was called CNN. Imagine the pressure to provide ‘news’ if that’s your sole mission. Today there is an amazing combination of technology, a large number of 24hour “news” channels and corporate greed. And the “news” channels all profess to be fair and balanced. They are anything but fair and balanced. The right

wing channels have right wing “reporters” with perfect smiles and bodies “interviewing” the best “experts” around on every possible subject. Naturally the left also has the same setup. There is no fair and balanced news. So, the press demeans our republic in a blind pursuit of advertising dollars. There is an old saying, ‘it takes two to dance.’ And the partner in this dance is the government. The dance is the tango - a dance of great passions. Each partner gives and takes. There is not one without the other. Together the government and the press pretend to fight the noble fight while feeding the populace a steady diet of conflicting views. In the end everything is opinion. Both sides make huge money. Whenever you find money and government, there’s more whores than a red light district. No victim crime. Everyone wins. There is no difference from the President to Department Head, Senator and Representative. They know the press is a free funnel to spew falsities at astounding rates. New members learn from their elders. The politicians seek press interviews, conferences in historic rooms in the capital, and

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there’s the ultimate prize Sunday morning talk shows. It’s great for the next election. The press laps it up. Why? The interviewee says nothing but then the news people go to work on it. The news organizations are no longer dominated by news people but it is easier and much more profitable to make-up the news. Just listen to the so-called reporters and anchors and experts. They first give you the outcome, then figure out how to make it happen. They take one rumor and discuss it for hours. It doesn’t matter if its right, hurts a reputation or is false. Even when they are wrong, such as their assurance O.J. and Jackson were guilty, they talk for weeks more about

how they were still correct. How about that? In order to save face on being wrong on what was assumed to be sure outcomes, (thus proving their poor worth as experts) they continue to say why they’re right, including the lack of integrity of the jurors.

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The press is the first to scream violation of the public’s right to know, which is not a constitutional right. But if they need to, they will impugn a person’s right to trial, explaining that the jury is either stupid or corrupt. In this way they’re right even when they’re wrong. The government spins and the press grins.

Case Stories Wet Pants Plaintiff Part II Some cases just seem to have it all. In Wet Pants Plaintiff ’s Part I, there was a lot of interesting medical stuff. But the same case also has a lot of just plain weird stuff. It started like this. We got a call one day, fairly late in the case, as I recall it came after the disclosure of witnesses. The caller said he had lots of information about the case, that fraud was involved and he was the plaintiff ’s son-in-law. I agreed to meet him in a Chetopa convenience store. Once there I looked around the store and parking lot, which did not reveal anyone. As I wondered if I was stood up, a man got out of a pick-up and started toward me. As he got closer he held out his hand and my hope dissolved.

The man was about 5’9” and 300#. He wore a pair of overalls that were not buttoned and his shirt could not possibly hide all of him. My feel for a credible witness is choking me. We sit down at the convenience store. He says he’s related to the Plaintiff, but he had to do the right thing. I asked him about his relationship with his wife. He said, “She’s a whore.” I said that’s not an appropriate way to refer to your wife. To my amazement, he says, “No, I mean she really is a whore.” I said, “In Chetopa?” And he replied “Oh yeah.” As I sit in amazement, for some reason, I ask more questions. I want to know how he met his wife. I swear to the accuracy of the following. He said he knew her parents and was helping them by building a deck to their trailer. As he was working by the back door, a women came around the end of the trailer, “buck naked” and asked her mother if she had the birth control pills. I could not even be sure if I was conscious. He also tells me, in his own way, that the wife was retarded. I guess the whole naked incident made me believe this claim.

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I left this area and went to the facts of the case. The Plaintiff testified in her deposition that she was unable to work. The guy says the Plaintiff lied; she really did have a job. He did not know the name but described the place and area of Parsons. Although I am alternating between laughing and staring ahead, I decide to look for the business because I think I know the location of the industrial park. I checked a lot of places, getting no where. But then, just like in the movies, I found the company. I got verification of the plaintiff ’s employment and copies of income statements.

She sets out the various events, time lines and many facts of dates, names, etc. This is not a particularly difficult task. It is pretty much the same routine as other classes. But now for the great part. Sister Virginia does something new. I admit to amazement

I informed the plaintiff ’s attorney. The Plaintiff ’s attorney withdrew the claim for lost wages. I only met my informer once. Of all the good things that eventually led to my defense verdict this case was the weirdest one of all.

The full scope of the question flashes across my mind. It is a completely new enriching reason for school and learning.

I am in my high school world history class with Sister Virginia. The class consists of the same repeating topics this course possess.

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We see the idea in The Case of the Combine, Oops but it’s application sweeps to the the whole of the surface of the earth. In the early Twentieth Century civil wars created the Irish Republic (except the north remains, which is captive by the British). The dates of these heros are known and recorded. Statutes are constructed. Sites of important battles are marked out. And of course every day, year are set to the memory and historical record.

and excitement. Sister Virginia asks a question I usually associate with being in trouble: “why.” Imagine what a question like that means in history.

Strategies Ask ‘Why”

of the cause. I try my best to ask ‘why’ as often as possible.

The question applies to whatever you do. Asking this question leads to new medicine, computers, ships, both sea and space. Asking, ‘why’ applies to the lawsuits. Many lawyers begin with the gathering a few facts surrounding the basic events

A class on Ireland will cover these events. You will discover all the biggest years, names and battles. There remains the interesting points. Why did young lasses fight the best of the British? Do you know why? Why was there war? Why no food for starving Irish? Why the emancipation around 1880, led by Daniel O’Connell (I believe a lawyer by trade) succeed? You believe that’s all for scholars. Book writers. Can you not read, think, draw conclusions? Maybe the British did their best. If you ask no questions, then you will not know.

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The dates and names and events are always relevant. Just ask, in addition, ‘why.’ Always think ‘why.’ The story behind the story will give you a unique, individual, personal insight. Come with me and carry forward the passion to ask ‘why,’ I did not raise my four children to stand silent. Do not let my passion die.

Monologue Civilization “Look at my works, ye mighty, and despair.” From “Ozymandias, by Percy Bysshe Shelley (1817)

Shelley’s prose is compelling: “Look at my works.” It is an order. It does not ask; it commands. And, the author commands the “mighty.” This author is not invocating just anyone, but the mighty. Shelley invites a comparison: the mighty of old and now. The poem expresses the vanity of ancient mighty builders and the frailty of their creations. Indeed, the mighty will despair.

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Our builder lacks historical context. He does not recognize that his monuments will, someday, be eclipsed by even greater monuments. And so the builder despairs. Shelley’s poetry applies to these countries: Greece. Egypt. Rome. Britain. Socialist Germany. USSR. Each watched others in despair. Will Shelly’s insightful view of the future come true? Don’t we in the USA invite the world to look at our works; and, say it with an arrogant tone? Does our arrogance make our vision so myopic that we do not fear the future, the next top civilization? Will we despair someday? It is quite imperative that the United States does not continue to arrogantly prod the world to look at our works.

Case Stories The Bovine Matter I was hired, not long before the end of my career, by a chemical company. This may seem to be the ultimate representation of the evil corporation. But when the plaintiffs are crooks, it sets the stage for a great case. I’m glad this one came fairly toward the end of my practice because it was one of the finest defenses I mustered.

The client, located in Cherokee County, no longer exists. It made a product that produced nitrogen was a byproduct. Nitrogen is a fertilizer. The nitrogen, for a long time, was transported off the site for disposal. Later, someone realized that if the nitrogen was watered down it would make a good fertilizer. The client gave it away to Smith (can’t remember the name) who sold it for a small price to local farmers. Smith, who owned cattle, and applied the nitrogen fertilizer to his own fields, which he cut in to bales of hay. Smith fed the hay to the animals and, as is common, sold the excess to other cattlemen. After some time, I don’t recall, there were three cattlemen that experienced sudden loss of cattle. All cattlemen will experience occasional losses, but these losses were too many and too tightly centered. The autopsy showed. The hay eaten by the cattle was tested and was found to contain far more nitrogen than normal. A chemical company makes too good a target and the three cattlemen sued. The plaintiff ’s case went like this. The chemical company, despite many years of uneventful disposal of the

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watered-down nitrogen, allowed a load to go out with very excessive amounts of nitrogen.

 

Conversation The tumult in the heart keeps asking questions. And then it stops and undertakes to answer in the same tone of voice. No one could tell the difference. Uninnocent, these conversations start, and then engage the senses, only half-meaning to. And then there is no choice, and then there is no sense; until a name and all its connotation are the same.

By: Elizabeth Bishop

Smith applied this fertilizer to his grassland. The hay produced from this area, in turn, had excessive nitrogen. The hay was sold to the plaintiffs who fed it to the cattle. Some of the cattle died. The above was uncontested. On our side of the case, several animals were autopsied and it was found it did not die of nitrogen poisoning.

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The plaintiffs responded there was no other reason to account for the number of deaths and short time period of deaths. How could we account for the deaths, given the above admitted facts? I knew the plaintiffs were wrong, but we seemed to not make any progress. The formal discovery revealing the above facts was extremely intense and produced boxes of documents. In Smith’s deposition, he testified he fed the same hay to his cattle that he sold to the plaintiffs. His cattle did not die. My suspicions were well founded. As I learned over the years, the key is to ask why. There are two areas in this case. First, account for the absence of the death of any of Smith’s cattle. Second, account for the deaths in the absence of nitrate poisoning. The two problems are related but have unique elements. I’ll try to point out the separate parts of the defense. First, why did Smith’s cattle not die? As I mentioned earlier, it was an important fact that Smith’s cattle did not die even though they eat the same hay. To find out why, we compared the operations and land

of the plaintiffs and Smith. We hire two experts at the University of Wisconsin at Madison. One man is an expert on grasses, and the uptake of chemicals, such as nitrogen. The other man is an expert on the raising of cattle, statistics on cattle/acre and eating needs of cattle. We also hire a local vet to testify about much the same as the second expert but as to local conditions. We also hire a pilot and produce ariel photographs of the plaintiffs’ property. This more clearly than anything else, show the poor condition of all three properties. The sum total of all this data is very telling. Smith runs a model operation and the plaintiffs run awful places. It is shown that the plaintiffs have too little land and grass to feed their cattle. It is true of each plaintiff. Their remaining cattle are not healthy. Even a small amount of nitrogen will hurt the plaintiffs’ cattle but have no effect on Smith’s cattle. Lastly, I develop detailed diagrams on the production and distribution of the nitrogen from the client to Smith and the hay production to the plaintiffs’ operations. We have custom exhibits on form-

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board of the diagrams created by a company in KC. Second, why did the plaintiffs’ cattle die? At first, it did appear that the nitrate was the cause. But as we investigated, we found multiple causes. We hire two veterinary toxicologists, one from OSU and the other from KSU. They each evaluate all the data on the dead animals and separately confirm that there was not sufficient nitrates to kill healthy animals. I also hire a local veterinarian to testify regarding regular preventative care and nutrition. He confirms the practices of the plaintiffs are far below acceptable. Lastly, we find an old cattleman from Oklahoma was found to address the specific breed of cattle and its needs as to feeding and normal preventative care. It is, as a result of this effort, clear that the practices of the plaintiffs explain the deaths of the cattle. I am more sure of victory than any complicated case I encountered.

But its a funny thing about corporations. The chemical company decided, at the last minute, that it was going to settle in order to avoid a trial. Against my recommendation, they paid off three crooks although it was only a small amount. I was robbed, by my own client, of a defining moment. I created a great defense. We would have decisively won all three cases. I felt that way at the time, and with the passage of time, still believe it.

Strategies Listen In large firms young lawyers go out with checklists of questions to ask a deponent. I’ve watched the absurd task. They are like robots. They carefully ask each question, never following up when necessary. Sometimes, I would take depositions without notes or paper. I would sit in front of the witness, and the others present, with nothing on the table. You might think my action as stupid or arrogant. It was actually about listening.

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It forced me to do something lawyers seldom do - listen to the witness. I was engaged in a conversation, in addition to impressing everyone. I was always surprised at what I learned. I think it was all sorts of things I would not have learned by following an outline. Now, this is not to say that when I was through that some facts were left unexplored. But it was a neat exercise in listening. Listening, as opposed to hearing - wait - read that again listen is not hearing . . . Listening is an undeveloped skill not just with lawyers, but everyone. Have a conversation with your heart; a bird, a friend, a lover; and, strangers at the lunch counter. Listen little and hear everything.

My Monologue Loss of American Society “Within the scheme of Government, there is a contract between the government and citizen. The citizen must be reasonable.” JOHN LOCKE [ENGLISH PHILOSOPHER LIVED 1632-1704]

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Thomas Jefferson spoke to this social contract as it related to the American revolution. He wrote that colonialist did not revolt over the taxes demanded by the British after the French and Indian wars, but the manner in which they were taxed. Jefferson believed that a lack of representation violated the social contract between Britain and the colonists. Britain taxed without their consent. The consent could come in the form of representatives to Parliament or Britain negotiation with the legislatures of each colony. But there was no revision to the social contract and, therefore, Britain broke its social contract with the colonies. Alf red Whitehead wrote, “The basis of democracy is the common fact of value experience, as constituting the essential nature of each pulsation of actuality. Everything has some value for itself, for others, and for the whole. This characterizes the meaning of actuality. By reason of this character, constituting reality, the conception of morals arises. We have no right to deface the value experience which is the very nature of the universe. Existence, in its own nature, is the upholding of value intensity. Also no unit can separate itself from the

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others, and from the whole. And yet each unit exists in its own right. It upholds value intensity for itself, and this involves sharing value intensity with the universe. Everything that in any sense exists

has two sides, namely its individual self and its signification in the universe. Also either of these aspects is a factor in the other.” The United States has broken its social contract with its citizenry. Our social contract is the Constitution. The following is my view on various ways in which the social contract is broken, in the context of the term ‘society’. As an aside, please do not think your father sits here and recalls all of these writers from school. The general ideas are mine but I have found the

quotes, often by accident, and I feel they give support for my ideas; and, the fact that they are neither nor unique.

introduction

A general, and widely used and accepted, definition of society is an extended social group having a distinctive cultural and economic organization. wordnet.princeton.edu/perl/w ebwn My D e f i n i t i o n of Society: A group of persons, sufficiently associated to identify themselves as a separate and distinct group. Further, when a society consists of a geo-

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graphical boundary and a political system, it is referred to as a country. A country must constantly work to maintain those set of characteristics that caused the original members of the group to associate themselves into the society.

the federal constitution

The Federal Constitution (and the original set of amendments called the Bill of Rights) is the colonists’ written set of common values to define and create an ‘American’ society. There are other documents reflecting the same values, such as the Declaration of Independence and Federalist Papers; however, these are not the papers of the United States, a ‘country.’ The documents were written before the colonies’ defeat of Briton and the subsequent passage of the Constitution by the colonies’ legislature. I think it is fair to consider the totality of these pre- and post-Constitution documents to discern the original colonists’ values. To this very day, these values are admiral.

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The Constitution is also the document against which we must consider American society and whether it still exists. The interpretation of the constitution is of critical importance in maintaining the ‘society.’ A balance between group and individual is nearly impossible. The idea of a representative democracy creates this tension.

government structure

The structure created by a country will, of necessity, have Policies and Systems to effectuate its characteristics. The balance has been increasingly upset. Although the precepts of our country places prominence on the individual, there is still an absolute requirement the ‘society’ is still of greater importance. Without the ‘society’ there will not be any protection to the individual. And this is the risk of over-emphasizing the individual.

I’m going to act like a strip of bacon if I don’t get going. Jack Webb, as Pat Novack, in Novak for Hire (circa 1940s)

In our system I think Policy and System mean as follows: Policy The organic basis of our government is contained in The Constitution and The Bill of Rights. Thee documents create a set of characteristics that caused the original members of the colonies to associate themselves. The Government is divided in to three branches with a number of checks and balances. System is the administrative means necessary to implement Policy. This includes various rules, committees, departments, etc. needed to effectuate the decision-making process of Congress and the President and the Federal Courts.

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elections

We have just finished midterm elections as I begin to find a way to set out my feelings.

The various subjects under “American Society” (in no particular order) are intended to reflect my opinion that a society must protect itself and this is an active and on-going process. The balance between Government and the citizen, in the United States has suffered to a point of real damage. Both the citizen and the government have breached the contract. A change in course requires the complete acceptance of our failure and bold moves to restore the balance of the government and citizen to which Locke referred. I am writing this to reflect my thoughts so you may know me a little better.

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As mentioned above, Jefferson points to the lack of input by those governed as a reason for revolt. The above statement seems to me to be obvious; and, in the absence of participation in government, revolt is a natural right of people. In our system, participation is based on the vote. The history of our country shows that vicious campaigns have always taken place. Also, local newspapers have taken sides in elections. But I believe things are different today - different to the point that there are no true elections on the state and national levels. An election is a matter of choice given under legitimate processes. At this time, I believe there is neither a matter of choice nor legitimate means. I will leave my thoughts on a matter of choice largely to my comments on the two party system. However the corruption of the two parties and, the limitation of choice, to only two parties, chokes the vision of the Constitution.

Proper elections need two things: the opportunity to seek office; and, processes that do not perpetuate and limit the number of parties. There is no realistic chance to run for office unless you are tied to one of the two primary parties. It takes huge amounts of money that is outside the ability of anyone. So in order to run you have to be a whore for one of the parties and their major contributors. There are a variety of laws that also prohibit additional non-party candidates. For example, there are stringent rules as to who can get on a ballot. This means it takes a great deal of money to hire an army of lawyers to get you on the ballot. Once again, elections are limited to wealthy, party whores (or is it whores who are wealthy?). The absence of legitimate elections means the country cannot support the values the society embodies. In fact a review of any of the contemporary documents before and after the Revolution key the right to vote. You can not have a real right to vote under the above situation. Do we believe there are real elections in foreign countries with one party? Why do we fool ourselves in to thinking it is any different here? Everything is carved out for

the two parties and they like it that way.

ences to God at State sponsored events and building.

My second point is that the lack of term limits perpetuates the use of secrets, collusion and private payments to those in real power positions - the ones who have been there the longest and trips to persons with seniority.

However, I would like to point out that every time the US

There are Congressional ‘fact finding’ trips constantly, all over the world. Do you believe there are facts found. There are a lot of ways to pay for vacations. The money from companies, unions and PACs goes to the persons with seniority. Seniority decides who is the chair of committees; who puts who on committees and on and on. We live in a ‘Matrix’.

education

On November 10, 2006 Reuters reported: “Student leaders at a California college have touched off a furor by banning the Pledge of Allegiance at their meetings, saying they see no reason to publicly swear loyalty to God and the U.S. government.”(emph. supplied) For this article, I will not go into the debate over refer-

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Supreme Court sits in session, a clerk reads the traditional chant, which in part: “. . . God save the United States and t h i s Ho n o ra bl e Court. . .” The very institution that decides cases involved in the First Amendment states this each time it hears cases. I think their reasoning is that the reference to God in incidental, a matter of tradition and history. But an incidental, traditional and historical nativity scene the public library has been outlawed by the Supreme Court. Apparently the chant of the USSC has no impression on the college in California, as noted in the quote.

I want to look at the quote from the stand point of the loss of participation in, and belief in an American society. Separately, what does the presumed acceptance of the students’ act by the college reflect about American higher education? Is is only natural for college students to rebel. It is part of a process of maturing. However, there always limitations on rights. A Supreme Court Justice, dealing with a First Amendment made the statement there are always limitations on rights, for example, ‘one cannot yell fire (falsely) in a crowed theater.’ These college students ‘see no reason’ to pledge allegiance. Why? What causes such a sweeping denial of your national roots and source of protection? Local police and fire departments are partially funded by the US government. The National Guard serves many domestic rescues and saving programs. What possible basis exists to say this part of their statement truly gives cause to reject the government? The above arms of government clearly

demand loyalty. I think at least part of the statement is based on negative views of President Bush. Regardless of their views on Bush (invariably based on

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their favorite talk show host), these citizens, strike down the entire framework that supports and protects them. These students share all privileges inherent in citizenship in this country. Surely if the students see no reason to pledge allegiance to government, they could be much more demonstrative to do more than pass a meaningless resolution. Various licenses, national or state require fidelity to the US. They should give up their use of student loans to attend college. They should not attend any college talking money from the government. These champions of liberty can hand in their driver’s licenses. The second part of my criticism goes to the phrase the students see no reason to ‘publicly swear loyalty.’ The students are free to make this statement because the First Amendment protects it. Historically this concept of ‘free speech’ was a common theme during the period of time that saw the development of the American ‘society’. The First Amendment means that the student’s statement is moot. Everyone has the same right to ‘publicly swear loyalty.’ So their statement has no meaning.

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The last part of the statement refers to ‘the US government’. The US government implements the Constitution. The US government gives legality to the existence of States. The US implements the Constitution to give authority to the Bill of Rights. I assume the student overlooked other amendments to the Constitution that prohibits slavery and gives women the right to vote. Martin Luther King Day is a national Holiday. By the words of the student statement they reject loyalty to a government that took these actions. Shame on them. Most importantly, if students ‘see no reason to publicly swear loyalty to God and the U.S. Government’, they reject the concept of society. And this is most dangerous. The government is the administrative shelter to the society. The students apparently have no concept of the relationship between the core values of ‘society’ and the administrative reflection of those core values. In closing, these students are ignorant little fools who see their campus leadership ‘position’ as a basis to publish such

dribble. They should have paid more attention in the basic government class - from high school. Now I turn my attention to a structural problem. Apparently the college sees this as an acceptable statement by a ‘student leaders’ which I assume means the student senate. Colleges are traditionally liberal (except the business school because they never think for themselves) places. The exploration of ideas, old and new, naturally draw you toward the left of center. Young adults, away from home, experiencing new freedoms are bound to express themselves in radical ways.

The function of the government is to carry out the goals of society. The combined experience and knowledge of the origins and intervening history of society can be preserved or set aside.

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A board of education, administration, department heads and teachers of a school have the same duty.. The government takes upon itself the education of citizens. A critically important function. But does education just mean reading, writing, etc? It is my opinion that education systems are more than just subjects. Each element of the government must carry out the goals of society.

in such a manner. Colleges often act in conflicting ways in dealing with contemporary issues, because the leadership has given up its role in perpetuating the mores of the society. In the case of the actions of the student, the college should swiftly and clearly condemn

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My rant is caused by social institutions doing the easy thing - nothing. The school has a responsibility to protect societal values. It has failed to do anything. Indeed, private and governmental institutions lack the effort to instill our historical values to passing generations.

This is done by way of example with younger children. There are expressions of society’s goals such as honesty, emulation of historical figures, pride in hard work and positive feelings toward the county. The fact that colleges address educational goals of adults, at least young adults, in my view, changes nothing. There are efforts to act ethically and honestly. But these are in the nature punitive measures. Positive traits are not instilled

First, such a statement could hardly reflect the views of all students. Second, if students express such views personally or in class, that is fine. It is not acceptable to have ‘student leaders’ act in such a manner in connection with the activity.

two party system

This is an area that may seem strange upon which to write. However, stated straight-forward: A limit of two parties is a great detriment to representative democracy because it places too much power in too few hands.

the action. From the above statement we do not know the action of the school. These final remarks assume the school allowed the action in order to put my comments in a correct context.

There is no difference between the two parties. Each needs the other and works with the other to insure both share power. National politics is a dance. Traditional dance has the man as the ‘lead’. The lead carries the movement forward. But if

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there was no partner, there is no dance. The party in control of the White House is the lead, most effective if this arty also controls at least one chamber. This party is the leader. But government moves forward only with both parties. As an example, think about the Iraq war. It is often forgotten now (1/07) tat there was Congressional support for the war. Resolutions gave the President power to move ahead; Congress supplies the money. If the Dems wanted to end the war, they could move to cut off funds. That is to say, take some dramatic action that either directly achieves the stated goal of ending the war, or sets up some real issue for the coming Presidential election. Why don’t the Dems take dramatic action? It would put too much pressure on the Repubs. The only way anything is done will be in quiet conversations, diners or other places where there is no record an there is no public. Once a deal has been worked, subtle leaks will test news organization support. The support of the people is whatever the news media feeds them. The ‘experts’ will seal the fate of the deal. If it doesn’t look successful, the cycle of conversation will continue.

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sis on health care. Whenever there is happiness Hope you’ll be there too. Wherever there are friendly smiles Hope they’ll smile on you. Whenever there is sunshine, Hope it will shine especially for you to make each day for you as bright as it can be. Irish Proverb

What if there several political parties? The diners would begin to get too expensive. I believe the parties would begin to have real constituencies. There would still be dominate parties, but the smaller parties would have the effect of creating a more level atmosphere. The issues of the smaller parties would be the focus of their members. These parties, for example, The Green Party, would be more focused on environmental causes and keep these issues on the front burner. I think this would effect the drafting, debate, PR and ultimate outcome of legislative Perhaps, at this time, a party would have a primary empha-

These types of parties address all issues, and are not limited in the manner business of a party is performed. It would have a massive effect on US policy. I don’t think this could happen without the sponsorship of a major financial personality or group such as AARP. The movement will come from the grassroots. The parties will never support this change. A number of initial changes would help, primarily laws pertaining to getting parties on the ballot. On a different subject, I believe the President, to Congress, and the leading members of the House and the Senate, should in a separate proceeding, answer questions to the public on present issues. The Process involving the President would be essentially like the Prime Minister does with Parliament. Historical circumstances (I have no idea what they were) produced a two party system that have seldom allowed a third party. Two, short lived, examples were the Populists or recently, Ross Parot. The dominate parties simply take the positions of the small par-

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ties until the little guy runs out of money. The fewer the political parties the less representative democracy represents. I know you’ll think I’ve had too much medication, but I believe our model of democracy is led by one group - an amalgam of the Dems and Repub. Assuming this amalgam is a hybrid single party, then it means our government should refereed to as a “a dominant party system.” In a dominant-party system other political parties are tolerated, but do not have a realistic chance of winning. Although not technically a dominant-party system, the lack of difference between the parties and their working together, results in an equivalent system. All the fights are choreographed and everyone knows the outcomes. “And the beat goes on.” individual

My central thesis is that a society successfully exists only when individuals continue to exhibit and agree to the fundamental premise giving rise to the society. I found, by accident, a writing of Rousseau, and as a piece of

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philosophy, it is abstract. It reads with some difficulty because it was written in the Eighteenth Century. However, it speaks to a role of an individual viz. society and country. The following long quotes are from Jean-Jacques Rousseau’s “The Social Contract” (1762) The first quote: “The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.” This is the fundamental problem of which the Social Contract provides the solution.” The second quote: “These clauses, properly understood, may be reduced to one — the total alienation of each associate, together with all his rights, to the whole community; for, in the first place, as each gives himself absolutely, the conditions are the same for all; and, this being so, no one has any interest in making them burdensome to others.” And the last quote: “Finally, each man, in giving himself to all, gives himself to nobody; and as there is no associate over whom he does not acquire the same right as he yields others over himself, he

gains an equivalent for everything he loses, and an increase of force for the preservation of what he has. “If then we discard from the social compact what is not of its essence, we shall find that it reduces itself to the following terms: ‘Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.’ “ At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body, composed of as many members as the assembly contains votes, and receiving from this act its unity, its common identity, its life and its will. This public person, so formed by the union of all other persons formerly took the name of city, and now takes that of Republic or body politic; it is called by its members State when passive. Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State. But these terms are often confused and taken one

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for another: it is enough to know how to distinguish them when they are being used with precision.” The concept of a social contract has been written about since ancient Socrates, and later by Hobbs, Locke, and today John Rawls. Our society was created consistently with my thesis. Rousseau explains the thesis. Rousseau’s work is written in 1762, only a few years before the American Revolution. Locke’s influence on Jefferson has already been mentioned. My thesis serves only to show the positive of the thesis; but, I am writing this because our society is the negative, the lack, the failure, of the thesis. There is an extremely strong sense of the individual in American society. In fact, perhaps that’s the whole problem. We have a sense of being one, because of the cooperation of the colonies during the war. But keep in mind there were originally 13 separate, very distinct, colonies, based on religion, etc. It took individualistic people to take a trip across the ocean,

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only to bear the burden of living in a wilderness. I imagine the ships were often full of acquainted groups of similarly situated people who naturally migrated to colonies reflecting their views. These groups were more true to the definition of society. The country was not formed

always have the individual who doesn’t get along with others who are correct on the movie’s issue and resolves it with no or little help. Civil rights (I am not only referring to racial civil rights, but the whole of the Constitution) took a sharp turn to the left during the Warren Court. This turn emphasized the power of the individual at the loss of governments’ view of the whole. This has continued to the absurd. At this time there is no American society, but only the society of 300 million Americans and unknown number of illegal foreign nationals.

of similar-minded people but 13 separate groups, bound to together, not by their desire to be together, but their desire to throw off a common foe. As the new country grew it was by new groups of individualistic people moving west. This always continued. The popular literature, art, etc. often shows individualistic themes. The murals of Thomas Hart Benton, stories of the West, war movies, old time radio heros like Sam Spade all promote the idea of the individual. Today, movies

These people do not share (even care to know) the views of the founding fathers but only as to their selfinterest. At some point the emphasis on the individual means that there is no true ‘society.’ So, as to my thesis. Society can not exist without an agreement by its members to a set of common ideals. A government emphasizing the individual over common society in fact seeks a contradictory and untenable position. This situation exists today in the United States. It is one

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that will led to the government’s mutation in to another form. The government will not address the immigration problem. The mutation I mentioned will eventually cause a common union, as per the EU, between, the US, and at least Mexico.

medical care

In a society all aspects of a member’s life are significant to the group. This society professes to place tremendous value on a person’s life. Thus the health of every citizen is proclaimed to be important. Since 1973, we have engaged in a great debate on abortion.

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Imagine the tens, maybe hundreds, of millions of dollars spent on all Congressional action, lawsuits by the government, money sent on campaigns to amend the Constitution, etc What if we gave that money to people to pay for prescriptions? Would not our society live up to its promises on health care. We have an equally significant debate over stemcell research. The science is clear as to its future. But, people like Bush, say it’s a question that is too godlike to answer on our part. I assume this is because it reminds him of the godly choice to be born to a rich and powerful family who were able, and did, let him run from Viet Nam. What if we took that money and ending diabetes? Would not our society live up to its promises on health care. I did not put out section because it is refutable. It is not. I write this down as a rhetorical prose. It merely goes to prove my thesis that there is no longer a ‘society’ in this country. It’s all just words.

world’s solider

•Politicians seek power •Power seeks war, •Therefore politicians seeks war

The same is true on a macroscale between countries. In fact, in the case of the USA there is a blood lust so perverse that even when a collation of countries decide on multilateral action, we send an overwhelming majority of troops, therefore we suffer the greatest loss of life; we send the most expensive technology and armaments. And to this alliance, we say, that’s OK, you don’t owe us a dime. This scenario would not realize itself, if we did not seek alliances for mere namesake value. It’s like a disliked child telling others, if they come to his house, he’ll pay for all the expenses of treats, games and gifts. The UN is s a farce and so are we for supporting it. We stifle every move in the Security Counsel because of the right of the members to veto any proposal. We engage in the babble of diplomacy. Our society proclaims a desire for peace and avoidance of

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war. We mock treasured principles. Power brokers, using our names, have brokered more war than we can imagine. In the name of peace. This is not a society. We lie about and use the words of socalled principles to kill, or support the killing of, millions. Our powerful will support a tyrant today, calling him a man of hope, when they are fully aware he is a man of misery to his own people.

It is in justice that the ordering of society is centered.

Societies are organic. New persons, and ideas, are correct parts of its orgiastic nature. Societies are elastic. New ideas are fundamental to preserve organic development and personal liberties. From the above it is a reasonable deduction that a part of society’s essence to control its borders. This includes controlling immigration. For example, immigration should be limited to a number

Aristotle

immigration

Immigration is defined the passing or coming into a country for the purpose of permanent residence. [1913 Webster] Our country (just as any country) must have a sane Policy and System on immigration. A society can be further identified by its geographical boundaries. Society members, seeking and finding each other, come together ideologically and physically. A society, to protect its identity, establishes geographically boundaries. If the group is to protect itself from adversarial groups, the boundaries must be protected.

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of persons for which a society can reasonably provide. Immigration must exclude persons who want to seek the destruction of society. Immigration should not be unduly limited to persons of other countries. Societies benefit from the immigration of variety of foreign nationals. At times persons looking in many cases for escape from tyranny, such as, the Irish.

The United States has discarded its duty to place reasonable and fair limitations on the immigration of Latinos. A Policy on immigration must originate in Congress. The resulting laws must include the calculation of costs associated with immigration, for example, increased costs of welfare, schools, medical facilities, infrastructure, housing, language for the new nationals. After a general policy and calculation of costs for a budget, the government will have the ground rules to enforce the policy. Given the failure of our government to effectuate the above concepts, welcome to the United States of Mexico. The demographic shift is at a point that it can not be stopped. In 1980, there were roughly 14 million Latinos in the United States. Twenty years later, there were more than 35 million. The U.S. Census Bureau estimates that by the year 2050, a full quarter of the U.S. population —about 100 million people will be of Latino origin.

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“Latinos, Remaking America,” by Marcelo M. Suárez-Orozco and Mariela Paez, Latinos, Remaking America, University of California Press Berkeley /David Rockefeller Center Series on Latin America, 2002, addresses a number of issues, such as: That means that in just two generations, the United States will have the second-largest number of Latinos in the world, after Mexico. Wayne Cornelius (an expert in this area) says that “some demographers warn that the combination of very low fertility rates among the nativeborn population with high levels of immigration from high-fertility source countries makes such a crisis virtually unavoidable.” The Harvard Civil Rights Project found that Latino children are now facing the most intense segregation (by race and poverty) of any ethnic and racial group in the United States: 45 percent of Latinos were in majority white schools in 1968, but only 25 percent in 1996. In 1998, 29.9 percent of Latino youths dropped out of high school, compared to 7.7 percent of white, and 13.8 percent of African American youths, according to the U.S. Department of Education.

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• Latino buying power by 1999 had reached $384 billion a year, up 65 percent since 1990, according to the Siling Center for Economic Growth of the University of Georgia. • Latinos are now the largest ethnic group in the Catholic Church, making up over twothirds of all Catholics in Florida, Texas, and New Mexico. • More than one in every three Latinos (37 percent) in the United States is without any public or private health insurance. • There is an increasingly segregated concentration of large numbers of Latinos in a handful of states, in large urban areas polarized by racial tensions. By the year 2000, half of all Latinos lived in two states, California (11 million) and Texas (6.6 million). • Some 4,500 Latinos who inject drugs are becoming infected with HIV each year. The topic of AIDS within the Latino culture is addressed at:

http://www.dogwoodcenter.org /2001/07Latino.html For more survey work on the general subject, see The Washington Post/Henry J. Kaiser Family Foundation/Harvard University National Survey on Latinos in America, conducted in July and August of 1999. This work provides huge amount of statistic data on a wide ranging topics. See, http://www.kff.org/kaiserpolls/ 3023-index.cfm The scope of Latino migration is quantified by a 2002, the Census Bureau document an estimated that 8.7 million people resided in the United States illegally. The Immigration and Naturalization Service (INS) has estimated that approximately 40 percent of illegal immigrants are visa overstays while 60 percent crossed our borders without permission. Although the majority of illegal immigrants wish us no harm and simply want a better life for themselves and their families, the stark reality is that their presence has spawned widespread document and identity fraud throughout the United States that threatens our ability to distinguish illegal aliens from U.S. citizens and legal foreign residents. http://www.cis.org/articles/20 02/back302.html

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An immigration debate should be about our government’s failure to secure our borders with appropriate policies and strategies.

The USA will become Amerimex. The USA will become part of the Union of North and Central America, along the lines of the EU.

While the above information apply to Latinos, these issues apply regardless from where the illegals originate.

The actions of the government is a failure in duty to protect and maintain

It is my believe there is a unspoken agreement between the US and Mexico to preserve the current status quo. Mexico sends (allows) millions of its population to come to the US because it opens jobs in Mexico and brings in billions of US dollars. The US gets cheap labor from undocumented people who will work for anything, scared to speak up because of INS deportation.

Some states issue drivers’ licenses to illegals as a way to “keep track of them”. I don’t know how many illegals trust the government bent on deportation to go and receive a document whose intent is to keep track of them. Persons who refuse to speak English cannot read important signs, converse with police officers or seek help in an emergency. Hospitals must provide care.

It is deplorable that we have a government that creates and participates in this abandonment of our society.

Forged documents are an epidemic. They are used to gain employment, benefits, etc. I recall one corporate client who had 5 prospective employees. Their social security card were in sequential order!! Our difficulty in dealing with Latino immigration result in many difficulties: We have not made any decision on numbers. Our infrastructure is not prepared.

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The idea that these are struggling people seeking freedom is hard to accept when billions of US dollars are sent to Mexico; and, when billions are spent on infrastructure costs.

the set of values of the original society. There is a lack of tax revenue from illegals to cover costs of citizenship. The value to illegals is purely economic. Pregnant illegals come here to have a baby to receive free health care and make the child a citizen by birth.

expectations

In concluding this section I fear it is a ramble, with neither sufficient feature nor logic. Unlike retelling a case, this section was exceedingly difficult to write. I genuinely believe this country, because of an insane (no

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joke intended) change from a society that possessed original identified and supported mores and behaviors (of course I do not include natural, intrinsic rights that were violated such as slavery) to a mere geographical line on a map.

We got it right about 230 years ago. It was a beautiful set of values expressed in the Declaration of Independence, Constitution and many documents and oratory at the time. I think these values were pretty much followed until the the 1960s and subsequent.

A true society has expectations of its members. I can not list all these expectations. But, if there was such a list, it would have one thing in common: the group is more important than the individual.

Afterward events changed as a society.

This is thy hour O Soul, thy free flight into the wordless, Away from books, away from art, the day erased, the lesson done, Thee fully forth emerging, silent, gazing, pondering the themes thou lovest best, Night, sleep, death and the stars By: Walt Whitman

I hope the individual sections of “loss of american society” identify topics with relationships to values. If so, the loss of these relationships mean the loss of the sense of values defining our original society.

The Supreme Court was led by Chief Justices who believe the Constitution’s language must be based on contemporaneous events. Chief Justices of the Supreme Court Earl Warren 1953 to 1969; and Warren burger 1969-1986. However, it must be noted that many important opinions on school desegregation and civil rights were decided during this time. But on the whole they moved the relationship of the population in new ways. The Viet Nam war had an incredible effect tearing the country apart and the Federal government. The Nixon impeachment left the country with no respect for Congress and the Presidency. The Pill left no respect for relationships between men and women. Maybe my premise is all wrong. Maybe all societies

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change over time. I guess I just have a hard job identifying either the new values or their worth. Here are some of the new values. Commercials on all forms of products rely on sexual themes. Incredible foul language is used on TV, and there is an even more disturbing amount in songs and movies. The images of the female body on prime-time TV and the universal demand for, and use of, large-breasted, barely clad women in TV, music videos and even PG rated movies is disgusting. Women are generally viewed as stupid, dependent on men and quick to have sex. It promotes dangerous messages to young males about women in general, and to women about the basis of their worth. The emphasis on money, wealth, and materialism is at an all-time high. There is a sense that the way to a good living is not work, but the lottery, American Idol and other get-rich schemes. The lack of emphasis on savings. (I plead guilty)

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There is no sense of selfrestraint, respect for each other.

Case Stories Fundamentalist Pedophiles

There is no sense of community or the need to be involved in the support and maintenance of a community.

I had two cases involving pedophilia. Each case was an awful experiences.

We are unable to develop a consistent foreign policy based on moral rightness. America is the World’s Bully and has worked hard to earn that title. The judicial system, including police, lawyers, prosecutors and judges, and the law in general, are jokes without a sense of professionalism. America chooses not to educate, and provide health care for its citizens. Citizens reject tax requirements to fund such items, and politician are too cowardly to suggest the need for necessary funding. It does not control its borders, but offers health care and benefits for illegals. The American political system rewards graft, lying and lifetime rewards for politicians. I don’t think Darwin’s view of an evolutionary process that that brings forth improvement applies to American society.

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The first case was a criminal matter. I was ordered by the Court to represent the man who was accused of sexually abusing his step-children. He was a truck driver. The family lived in a filthy house in Cherokee. The wife stoutly defended him. Ho w e v e r, h e w a s s u spected, but never charged, with abuse in two other cities.

Was there a time when dancers with t hei r fi ddles a n d c h i l d r e n ' s ’ circuses could stay their t r o ub les . . . “Was There A Time” By D y lan T h om as

The client would not let me plea although I tried very hard to do so. So we went to trial.

The State’s case was based on the testimony of the child-victims. Naturally, I was very short and soft with the child witnesses, but I did establish basic facts about the color and location and date of the crimes. The date was particularly important. I called the client’s employer, a local transport company. Utilizing their information and the client’s DOT logs, which show times and locations, I used a large map of the US and placed pins as to all locations and noted dates and times. I actually thought I had the case won. But the jury returned a verdict of guilty. PART II: This case also produced an odd result. After 2 days of testimony one of the jurors came to the judge and said she had not heard the testimony because she was hard of hearing. I made a motion for a mistrial on the grounds that each juror must independently evaluate the evidence. Since this juror admitted she did not hear the evidence, she would have to rely on the recollections of the other jurors. The Court summarily over-ruled the motion.

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I gave the case over to the indigent appellate board. The case was appealed. It was the first time in Kansas history a lawyer had presented this argument to the Supreme Court. The Judge was reversed and my position was held to be entirely correct.

This act of admission and forgiveness took place several years later after the earlier transgression. Therefore, the transgres-

In the second case, I represented a pastor who admitted to oral sex with a female child aged about 6. It was not a Catholic Priest but the pastor of a ver y fundamentalist sect in Independence, Kansas. I represented the local and national Church. The lawsuit was in the nature of an employment case. It alleged the pastor had prior problems in other towns and was still hired in the current church. This was apparently true! I interviewed probably a dozen senior elders. I established the following. In this church it was doctrine that a person who admits to a transgression and seeks forgiveness, is renewed and it is as if the transgression never occurred.

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sions did not exist. If the transgressions did not exist, the church could not w r o n g l y r e t a i n a n e mployee for acts that did not occur. I pressed motions to dismiss. The motions were based on se veral cases across the country holding a civil court will not interfere with the doctrines, policies and practices of a church. A civil court would have to decide if the church policy on forgiveness of sin was appropriate. This intrusion into a religion would violate the Con-

stitution’s First Amendment Establishment Clause. I believe I was entirely correct, but the local judge over-ruled my motions. These issues ha ve ne ver been decided in Kansas. It would have been a case of first impression and I completely believe I would have won. The insurance company got nervous. They were willing to pay the policy limits. There was a side argument about whether the insurance limits were $100 or $ 2 0 0, 0 0 0. I d i d succeed in winning this argument and saved the carrier $100,000. These cases were very difficult. My responsibility to the client was never more tested.

Strategies Logic The use of logic is seldom seen in any endeavor. It seldom occurs to lawyers. It is not seen as a true subject, and many would be surprised how important it is in western philosophical thought.

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Syllogism: A very important contribution to Western philosophical thinking. Example: Socrates is a Greek. All Greeks are human. Therefore Socrates is human. This stuff is so cool. Try to understand why it is cool to me, and it maybe it will help you know me. And yourself. You might even think it is cool. Clue: These expressions represent, to me, pure thought, expressed by one man explaining why humans are unique. I aspire to such pure thought. It can never be mine. Not a person every few decades, or more, can express it. A handful can know what it truly means. But all of us can aspire to it, see there is something wonderful. Something large. Something you know when you hear it even if you don’t know the formal name. Something that is beautiful. Think about the power of the syllogism. It is unlimited, and not just formal structured model with Greeks. The real power comes in seeing relationships of statements.

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It is a common argument that because of the presumed truth of two or more things that the conclusion must, necessarily, be correct. George Bush is from Arkansas; All people from Arkansas are are geniuses; Therefore George Bush is a genius. As you can see the conclusion, that George Bush is a genius, is based on, not one but two, faulty premisses. The use of syllogistic arguments are a staple in political, product advertisements, and just water coolertalk. Each premise must be proven as true, before the conclusion is true.

Syllogisms are naturally persuasive. If you use them well you will present a forceful argument. If the other guy uses a syllogism you will know how

to go about defeating it by taking apart the premisses. Oc c a m ’s R a z o r : One should not increase, beyond what is necessary, the number of entities required to explain anything. What if lawyers applied Occam’s Razor in trial preparation and trial? Well, it is my opinion the trial would be more beautiful. In my experience every lawyer, including myself, has violated this rule to their detriment. One of the most common violations occurs before the evidence. In voir dire each party has the chance to ask prospective jurors questions about their ability to try the case. The plaintiff goes first. Although not a particularly good question, as it shows noting, the panel is asked if they will decide the case only on the facts. It should surprise you to know that almost every defense attorney will ask the same question. This question violates the Rule and makes the panel mad because it makes them feel they lied the first time.

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But the best example of Occam’s Razor is the lawyer that questions every juror individually, asking each the same the same question. This is a great example of violating Occam’s Razor. There are other trial examples such as calling several witnesses who say the same thing. Is there a difference in business, or other occupations? No. Assume you are called upon to make a presentation. You are to explain the growth figures in your department for the last quarter. You have thought about the task and decide it can be done with a PowerPoint presentation of 5 slides. However, in most meeting your peers use presentations with 15-20 slides. In this case, the ‘entities’ referred to in Occam’s Razor is slides. When it takes 5 things to make a point, 12 violates the rule, and will bore your boss. It is your peers that are wrong and you wil be appreciated and valued for knowing Occam’s Razor.

Monologue Morality: Singularity vs. Entirety Singularity: A woman saw a dress made of impressively splendid fabric. The stitching was obviously

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accomplished by an expert in design and execution. In short, it was a beautiful creation. Our young women bought the dress. She wore it many times. In fact she wore it so often it became worn. One day she noticed a tear along a cuff. She became angry at the dress, which performed so well. She blamed the maker, the fabric, the seamstress. She judged the dress on the basis of a single defect, not the dress’ valued history. Entirety: A man saw a car that had all the features for which he was looking. It was used, and looked like the miles were as high as showing on the odometer. He loved every time he drove it. Even after years, and a new car, he still kept the old one. And drove it. But it showed its age. The paint was bad, dings numerous and the brakes needed checked. Get rid of it? Our owner gave it thought. He recalled when he got the car, all the great times with friends; the hours working on the engine. He did not judge the car on the basis of a single problem. The car was retained because the owner judged its value on the basis of its entirety.

Singularity. Entirety. Which moral judgment standard describes you?

Case Stories $60 Million Many years ago I represented the Sheriff ’s Department of Bourbon County. There were several defendants. They arrested a black pastor in Ft. Scott for murder. The procedures within the city and county left information typically provided to the local newspaper the information about the reason for the arrest in with. The charges were quickly dismissed but by then the paper had printed the reason for arrest. The pastor had a beautiful claim for defamation. The parties, county and city were trying very hard to put on a good face, but our own written records showed everything was just as damaging as it could be. The pastor went to a lawyer in Kansas City. Remember the

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pastor is black. The lawyer, also black, had a reputation for civil rights cases. He filed an extremely long Federal civil rights action. It was filed in Federal District Court. Although a lawyer, by rule, only pleads if the plaintiff is seeking in excess of $50,000, this guy pleads and demands $60,000,000. At all stages this lawyer was late in person or his paperwork was late. When he was in Court, he was awful and only knew how to ask for more time. The Judge in one hearing chastised the lawyer saying that anyone who files a case seeking $60,000,000 should have his work done on time. The case is a great defamation case. I’m sure the defendants, who knew they had really dropped the ball, would have come up with $250,000 to $400,000 without much coaxing. Because the lawyer tried so hard to make this case into something it wasn’t (civil rights), he missed the obvious. He couldn’t stay within the facts of the case. His client lost the case on motions to dismiss and he got nothing.

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Here are my thoughts on several educational concerns. They primarily refer to universities.

Picture of 1980 post-graduation party, Washburn Law School, Topeka, Kansas. My maternal grandmother, Mary Steeby, is in the background.

Strategies Education and the Role of Socratic Method Education and the education process are significant topics. Education is important to the individual and of the society. The natural starting point is a neutral definition of learning. “The act or process of educating; the result of educating, as determined by the knowledge skill, or discipline of character, acquired; also, the act or process of training by a prescribed or customary course of study or discipline; as, an education for the bar or the pulpit; he has finished his education.” [1913 Webster] There are two elements within this definition. First, a ‘process of educations’ and, second, a ‘process of training.’ Learning, then, centers on the teacher.

There is a transition of schools away from education. Schools are now expected to be moneymaking institutions. A scholastic emphasis that marked the university experience, is gone. Teachers rely on fancy PowerPoint presentations and computer graded tests. A college’s standing on the America’s Best Party Schools is more important to students than academics. Universities are becoming votec schools, and not true academics. State legislatures are cowardly groups composed of persons who can not look past the next election. As a result tax revenues are not sufficient to support, among other areas, universities. As revenue for the schools stays stagnant, the cost of education rises. Universities greed for ‘competitive’ advantage

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has sent them on a search for money. The search for money makes them rely on sports related income. In essence the schools are forced prostitutes for the legislature and find good revenue from alumni. Universities place too much emphasis on sports. Imagine the money, time,etc spent on major sports. Quite aside from revenue needs, schools feel the need to recruit and spend precious moneys on athletic scholarships - even little schools. Large budgets and coaches who make more than many corporate CEOs. I’ve often thought that if football and basketball set up league programs like baseball, then universities would be saved to once again teach, not cheer. Intramural sports would be for fun and not current programs based on money, illegal perks, drugs and guns, and a free college degree in an area they probably can’t spell. Lack of quality technique in teachers. I’m

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amazed at how much education it takes to read the same notes year after year and give the same computer tests each semester. Books for classes are obscenely priced.

S o c r a t i c M e t h o d Education is about transferring, not just facts, but methods that provide life long critical thinking, learning. The method to do so is the Socratic Method.

Probe the student. Socratic is based on question and answer. You have to ask follow up questions, but in such a manner to lead the student toward the answer. In the case of a broad area, there will not be an answer, but guide the student in the discussion.

One of the things that insures the success of Socratic is its emphasis on the teacher. A teacher who has a passion to test himself.

The teacher has to listen to the student responses and at the same time use the answers to push the discussion forward.

A teacher must know the subject matter. This is essential. The teacher must have the confidence to interact freely with the students.

As the discussion continues, involve others. The teacher goes among the students. As a student answers, call upon another student in follow up. Keep the discussion going with additional students.

A game plan is required to have a successful session. For example, which student will you begin with and where you want to end. What is the beginning? Provide a short background. You must know the scope of material you want to cover for the class period.

Do not commit yourself. It is not your opinion or answer that is relevant. Socratic is a discipline. You will grow in confidence with practice. Classroom work will continue to include traditional

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forms, such as, lecture, slide presentations. But the inclusion of Socratic will challenge the student to think, that’s right, to think about the subject matter. The student can not sit idly by and wait on you to provide the answer. Articles are available explaining the use of Socratic in diverse fields, from elementary math to medical school classes.

Monologue War So often a subject is beautifully addressed in places you might not think of. Ralph Waldo Emerson, wrote an essay on Napoleon ‘”Art of war; war asserted his arithmetic; always have more forces on the field on the field at the point of the attack; he fought by endless maneuver; maneuver to destroy by detail; maneuver at an angle; a small force by kill and rapid maneuver will beat an large force; he always what he is working with.” George Bush Our President sought war on the basis of a despot’s weapons of mass destruction at the beginning of Iraqi Freedom.

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Unfortunately, WMD actually meant Weapons of Mass Deception. Machiavelli, The Prince Chapter XIV

cipline; for this is the sole art that belongs to him who rules, and it is of such force that it not only upholds those who are born princes, but it often enables men to rise from a private station to that rank.”

One of history’s great state actors, Machiavelli, wrote: “As regards action, he ought above all things to keep his men well organized and drilled, to follow incessantly the chase, by which he accustoms his body to hardships, and learns something of the nature of localities, and gets to find out how the mountains rise, how the valleys open out, how the plains lie, and to understand the nature of rivers and marshes, and in all this to take the greatest care. “But to exercise the intellect the prince should read histories, and study there the actions of illustrious men, to see how they have borne themselves in war, to examine the causes of their victories and defeat, so as to avoid the latter and imitate the former; and above all do as an illustrious man did, who took as an exemplar one who had been raised and famous before him, and whose achievements and deeds he always kept in his mind, as it is said Alexander the Great imitated Achilles, Caesar Alexander, Scipio Cyrus. “A PRINCE ought to have no other aim or thought, nor select anything else for his study, than war and its rules and dis-

MY DAD: Always I think of my father. I want you to think about my father’s service in WWII and Korea. He is in a forgotten group. He belongs to those soldiers that went to war fine young men and came home mentally broken. No one mentions the many thousands of men falling in to this group. I have always blamed his drunkenness on war. Tom Brokaw described my parents’ generation as the greatest in our country’s history. I don’t agree. But regardless, there was no greatness lavished on men like my father, raised during the great depression, then lost across two oceans, two wars, two diplomatic failures. I lost my father in some nameless city or field where death, mayhem and the gruesomeness that is war, broke him down, piece by piece, until, in his mind, there was no peace.

I’d like to explain some thoughts on the Iraq war:

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We know that the war begins with the bombing of the World Trade Center. About the only reason for the bombing is extremist Islamic‘ martyrs seeking revenge against America. Naturally, the Jews are, as usual, responsible.

to kill him. I believe we need to address this fact. The war is against bin Laden and his followers, bin Ladenists. It is my view that Bush does not focus on bin Laden because of his obsession to force democracy on the Middle East. As I see the situation, fighting bin Laden takes away justification to take over Iraq, which is the key to bolster Israel and spilt Iran away from more hard-line elements in the region. And it was the likely choice because of the presupposed anger at Hussein from the Kuwait. bin Laden seeks to create a pan-Arab state based on a false premiss of religious extremity. Such appeal will bring him mass appeal. The underlying truth is that Bin Laden wants to take control of the combined oil of the mid-east an inestimable power in todays carbon based energy needs.

I think in different terms about the war. I believe the war should not be termed ‘the global war on terror.’ It does have a neat catchy ring. These references to ‘global’ are to bolster Bush’s plan to invade Iraq, look threateningly at Iran and dissolve American civil rights. The real enemy is not a fuzzy, ghost-like ‘global threat,’ but a specific person who runs the various groups running attacks around the world. bin Laden is the real leader. We entertain further difficulties by refusing

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I think bin Laden is a 21st century Hitler. Hitler aroused nationalistic themes. bin Laden arouses nationalistic theme, with a great emphasis on Islam. Both throw in an anti-Jew bias. In both cases the masses see their leader with almost god-like status. Hitler and bin Laden see themselves as invincible. Each are quite patient. If we had not ventured off to Iraq we could have focused on bin Laden in Afghanistan. In addition, if the focus stayed

on bin Laden in Afghanistan we would have received the support from the world. Bush lied to us because he knows the USA population is docile (better description than isolationist) and will not fight a aggressive war to protect our interest. On this point he is correct and history shows this several times. It’s disappointing that a President can not put a very critical subject in proper context and rhetoric to rouse the American people to the threat and pose a plan of action. This requires a forceful, Rooseveltstyle person. We need such a leader today!

Case Stories YMCA Hot Tub Tumble The case is a slip and fall at the YMCA men’s steam room, which also contains a hot tub. The plaintiff while getting out he fall down the stairs and sustains a very serious fractures of the right leg. The plaintiff is a professor at PSU. His trip to the Y is on the weekend to relax. The plaintiff ’s lawyer is an outstanding attorney from Topeka. There are several interesting aspects to this case. We found an incredible expert on slip and falls. We tear up part of floor, send it to him.

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At the trial the plaintiff attorney cross-examines our expert demanding to know if it isn’t true that even a small amount of water makes a the skin surface slick. The expert says no, and uses an example: people lick their fingers to turn a page because water actually make the skin sticky. The whole jury looked at me and the plaintiff lawyer. The plaintiff lawyer, judge, the jury and me all knew, collectively at that moment, that the plaintiff ’s case was in real trouble. I cross-examine the plaintiff. He verifies the date of the visit is on the weekend, Further he is in the hot tub to relax because of some difficult news about his wife. In fact he is naked. Then I ask him about any signs on the door going into the room. He says no. I ask him to look at a photograph I had taken of the entrance to the room. I asked the plaintiff, a PhD, if he could read. I made him extremely mad and indignant. I said it was fine to be insulted, but answer the question. And he said he could read English. Then I asked him to look at the picture showing the front door leading to the whirlpool. I asked him to read the words o the sign. The relevant part said that on the weekend the room is co-ed.

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So now we have our relaxing man, worried about his wife, naked in a co-ed hot tub. The jury accepted my argument that the plaintiff was so upset about his wife that he did something he would never do - sit naked in the co-ed hot tub. In turn, it more likely than not the case, the plaintiff was very upset and did not pay attention to coming down the stairs and his naked fall was entirely his fault. The jury agreed 12-0.

Strategies Father I wonder about my father. How did he grow up? How did he survive war, only to be slaughtered by peace? It can be difficult to know the answers to such questions. But a father loves with the intensity of white hot steel.

Those Winter Sundays by Robert Hayden

Sundays too my father got up early and put his clothes on in the blueblack cold, then with cracked hands that ached from labor in the weekday weather made banked fires blaze. No one ever thanked him. I'd wake and hear the cold splintering, breaking. When the rooms were

warm, he'd call, and slowly I would rise and dress, fearing the chronic angers of that house, speaking indifferently to him, who had driven out the cold and polished my good shoes as well. What did I know, what did I know of love's austere and lonely offices? I know you each love me; just as my father knew I loved him. I did love him. Such is the stuff of knowledge, which comes with age.

Monologue Irish British laws, at many times, including the mid-19th century, enslaved the Irish. By that strong word I mean the forced imposition of laws of a government upon persons causing them to lose their freedom of choice. One such law proclaimed that Catholic prayers could not said at cemeteries, such as, against a funeral. Glasnevin Cemetery is a cemetery in Dublin. It came about because the main cemetery in Dublin was forced to enforce the above law. The refusal to allow prayers during funerals caused a group of Catholics, including Daniel O’Connell to purchase over

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100 acres that becomes Glasnevin Cemetery.

was held up to ridicule because he was a Catholic.

Currently there have been over 1 Million persons interned. The key point regarding this cemetery is that persons of all faiths are buried there. This is the Irish, not British, view of faith.

We are a resilient, joyous, soulful, musical people who work and pray for justice which will birth a free and whole Erie. Ours heritage is forged by injustice, but we remained just.

The Cemetery holds many Republicans, including persons persecuted by the English after conflicts for freedom; and, the fairly recent deaths from Hunger Strikes.

I had many times that reinforced being Irish. My legacy is also yours. I was only a boy when I experienced it. We lived in Kansas City, Kansas. My father’s family had settled in St. Joe, Missouri. Grandfather was a fireman his work life. There were 3 boys and one girl and she was the youngest. Sound familiar?

The English and Irish are summed up as follows: “It is not those who can inflict the most, but those who can suffer the most who will conquer.” The Irish are patient conquering sufferers. The anti-Irish and antiCatholic bias followed Irish immigrants to the US. It existed in very public ways and even as a platform plank for politicians. A podcast on the 1856 Presidential election included the Whigs. Their national campaign platform, included restricting Catholics from holding public office. The party received 22% of the vote. Although this was only ½ the votes received by the Democrats and Republicans, it is still a significant amount. Another candidate, Freemont,

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My grandfather died before I came around. My aunt and uncles lived in St. Joe with and assortment of cousins, greataunts, etc. My grandparents lived in a small 3 bedroom house on 10th street. It was located along one of four streets surrounding a park. A Catholic Church was located at one corner of the square. It was one block from our house and my grand-mother and aunt went to daily Mass. We went to St. Joe for holidays and special occasions such as weddings, funerals and such.

I recall that funerals were a really good time. And they were. They were large groups of people who brought food to the bereaveds’ house. People would laugh and tell stories. The beer and spirits flowed, but I do not recall any behavior, that at my age would call drunk, or course. The men seemed to go to beer and the old ladies wold have bourbon and water. Now that I think about it the women seemed pretty sedated. On holidays I would run outside and play with cousins. Thanksgiving was a huge affair. For the children, the big question was who would sit at the very large dining room table and who would sit at card tables in the living room.

I liked to go into grandma’s room and play with her sewing machine. I pushed the large pedal wheel. I don’t know why but I was fascinated by that pedal. This sewing machine is the one I have. In the living room there were two large rockers of simple design and solid build. I always wanted to sit in one, but the grown-ups got to sit there. One of these chairs is here in the house.

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Sometimes we got to spend the night. These were very special. I would sleep in the front bedroom. The room faced the street and I would watch the car lights filter through the lace curtains. I counted cars, fascinated by the passing flittering points of light. The room contained a tall, large bookcase, which again was of a simple, but sturdy make. It was filled to overflowing with books and magazines. As a child I would look up at the books and how huge bookcase seemed. I now have that bookcase in the dining room - it’s not so tall and huge now! If p o s s i b l e , I w i s h t o h a v e a n Ir i s h C r o s s a s m y g r a v e m a r k e r, i d e ntifying our family as coming from County Clare and, in Galic, “Erin Go Brath.” My Father: As you know there is a great deal of original material on my father’s service years. This gives an extremely wonderful feel for those years. At your effort and kindness, especially Neil, my father’s funeral USA flag is in a beautiful case. He has also prepared an incredible photo album. ‘Thank you Neil’ is not sufficient and I also appreciate Ben’s efforts at acquiring materials.

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Physical artifacts of Irish ethnicity, and our family, have partially been allowed to be in our home. For all our years we will look at these with the great fondness of treasured mementos.

Picture of one of several O’Connor sept crests. This one seems to be accurate as to the sept in County Clare.

Case Stories Down Syndrome Death This is my greatest case combining the complexity of law, facts and outcome. Persons with Downs Syndrome (DS) DS is a genetic disorder , which has been treated for many years. In addition, other medical conditions, such as, heart defects that accompany the disorder. As a result the life expectancy for DS was in the early 20’s. Over many years new medical procedures make the heart problem a thing of the pass.

Also, new laws ensure DS are entitled to live in as normal an environment as possible. In our case the plaintiff was a resident of the same care facility for about 20 years. He was in good health. However, when he was about 50 years old, he took a very quick down hill course. He fell more and more. His overall neurological condition dissolved. After a couple of months he became bedridden. Later, he was removed to Houston to be with family and eventually died. The suit said we are negligence in several particulars. Several detailed regulatory deficiencies. However, the principal acts of negligence dealt with allowing the plaintiff to walk around and continue to fall. The difficulty was the inability to question the plaintiff. Also, the nature of our business includes recording all facts in detail, like a hospital. I interviewed the people who took care of the plaintiff. He was a generally well liked person who was a very, very longterm employee, while being difficult a lot of the time. The defendant surprised me; they had to let him go about because federal regulations. I got he medical/facility files. I got an entire file cabinet

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worth of files. We concentrated our review of files on the last couple of months before he left. It was clear there began, at a fairly discreet time point, a downturn. Because of the allegation of the violation of Governmental regulations, we hire an expert on Kansas health care regulations. Naturally, the medical files show the history of falls. This was a matter of great concern. I wanted to address this directly, so we found and located an expert on running this type of facility with a concentrated expertise in the rights of residents to act as they want to. We were very fortunate to find an extremely qualified man in New Jersey capable of responding to these allegations. I kept thinking we were not asking the right question, and indirectly, we were playing in to plaintiff ’s hands. As long as we let the case just develop over the existence of falls we had no chance. We would be playing in to their hands. I looked at the medical records. Why did plaintiff fall now. He had not had an earlier history before. Why did the frequency increase. His overall condition went down. I began doing medical research on DS. I was struck by one thing - the life expectancy

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was very low. Although it had increased, the plaintiff ’s age of 50-52 was off the chart. I began to wonder - what are the long term problems for people with DS? I researched this question and found almost no literature on the subject. Again we looked for an expert and again we found an extraordinary doctor at Harvard University. The plaintiff responded with a top expert in Chicago. Now we truly had the real question in the case. What are the long-term health problems of DS? It was so exciting because he long-term health problems of DS was a cutting edge medical issue. There were only a handful of experts n the country. We were also away from the simple issue of the plaintiff falling down - an issue we could not win. We were on to an issue we could win and that I was sure was the real true issue in the case. As a bonus, I got a whirl-wind trip across the eastern part of the country taking expert depositions. The deposition of the plaintiff ’s DS in Chicago had one very funny point. We were in deep testimony about life expectancy.

Morning Sun Newspaper, circa 1984, announcing creation of White, O’Connor & Werner, Attorneys.

I asked if the plaintiff ’s life expectancy should be judged on life expectancy tables from the date of his birth, or current tables as he used. I argued with him that there was a great difference because of the disease. And life expectancy should only be judged from medical data and tables extant at the time of the plaintiff ’s birth. What ensued was a bewildering series of questions and answers that finally got hilarious as it reached a point that neither one of us had any idea of what the other was doing. The case settled, but at a significantly reduced amount because of the questions we asked.

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If the case had been tried it would have been my greatest challenge. I wonder how it would have turned out! I know.

Strategies Blue Sky The sky today is Blue. Not a cloud. So beautiful. Untouched and pure. Deep. Blue. Pristine. An unmatched even pure hue. Color painted by infinite Process, persisting despite all man has done to destroy beauty. It is a warm October afternoon; the kind that comes each year, but never so often as wanted and greatly welcome. Looking at the sky I realize one never knows one’s last day. I do not want this to be that day. This phrase sounds common. Oft repeated phrase, “one never knows one’s last day”. Repeated so very often in each life, this blue sky brought the phrase to life today. The sentiment is not felt by everyone. For a depressive, such beauty everyone else sees, is not there. The following I feel is beautiful: “Men seek retreats for themselves, houses in the country,

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sea-shores, and mountains; and thou too art wont to desire such things very much. But this is altogether a mark of the most common sort of men, for it is in thy power whenever thou shalt choose to retire into thyself. For nowhere either with more quiet or more freedom from trouble does a man retire than into his own soul, particularly when he has within him such thoughts that by looking into them he is immediately in perfect tranquility; and I affirm that tranquility is nothing else than the good ordering of the mind. Constantly then give to thyself this retreat, and renew thyself; . . .” The Meditations , Book IV By Marcus Aurelius Written 167 A.C.E.

Beautiful skies are rare jewels surrounding a crown holding few gems. I hope the feeling lasts just a few more days. I hope to see Blue Sky.

Monologue Technology Fails Technological advances at a faster rate than political/social advances. This means that persons fail to have time to integrate technology in to their lives. This leads to the

impossibly rude and insulting style of life we lead. I think my first technology recollection was the dishwasher. The dishwasher would save time. A mom could save a lot of time and do a better job. Over the years the dishwasher improved and the promises of time savings continued. It turns out the time savings of the dishwasher were not the first. The clothes washer was already saving our house wife extra time. The next event I recall is the microwave. They were heavily taunted as having a great savings of time. And it was a fortunate. All the time the house wife was saving had to be taken up by this new devise. And there were greatly fewer house wives. The times they had been a changing. The family disintegration was now at full speed. The soccer mom had not yet been named, but time savings was the name of the game. And think about the cell phone. This is the ultimate time savings device. After all, once you have the time savings of the contemporary washing machine, dryer, dish washer, and even the crock pot, and mini-van, you have hours to use calling and now serving the web, text messaging, word processing, etc.

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while in the drive thru lane at McDonalds. The cell phone is the perfect metaphor of the present time. The cell phone allows, really causes, multi-tasking. We spend no time in direct contact with each other. Even at the basic function of calling, we do not really call people. We just take up time between errands. In fact it is not unusal for a person to buy items from a merchant without stopping a cell phone call. We don’t even stop talking while standing in front of the clerk. It represents the lack of respect for each other. No social niceties. People now have so much extra time that we work all the time, we take lousy care of ourselves, we generally ignore our kids in order to work enough hours, no exercise . . . Think about the leaps in technology in areas like computers and military. Computers have made Orwell’s vision a reality. The military can now kill civilians from pilotless drones. Technological advances, at its present speed, out paces humanity’s ability to absorb the changes, and therefore, fails.

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Case Stories Best Closing Argument I was involved in many employment cases with the EEOC, KHRC, NLRB, Wage & Hour, Black Lung, workers’ compensation, and labor law. As a defense attorney what is the first thing you do? I also played a part in many common law based civil actions with corporations around the area, including Able Body, Cell-tron, HIX Corp., NuWa Industries, Superior Industries and McNalley Corp. Several of these went to trial and also on appeal. A couple or so can be found in published decisions. But don’t bother to look, I’m sure they were all losses (at least on the appeal). But still, I am proud that I was involved in these cases because they contributed a fair amount to Kansas common law on issues like retaliatory discharge and implied employment contracts. Despite a somewhat dubious record in terms of wins/losses, there is something interesting I found, although I have no idea how it could be useful to you. But it deals with looking at a situation and deciding on a course of action. One of my central points is that law

school, just like of your educations, is at best a starting point in book learn’g and life learn’g. That’s why law professors could never practice law. Assume your client, a large corporation, makes a decision to terminate the employment of a reasonably long-term person. The employment has not been without difficulties, but overall, it’s far from awful. There was a problem between several employees and one terminated person sues. Now I want to return to my question: As a defense attorney what is the first thing you do? There are several possibilities. Research. Hire a detective to closely examine the plaintiff. File lots of motions. Ask for the personnel files of all involved (this is very close and most likely number 2) Ding, ding ding: the winner is: Make the large corporation the jury’s best friend. My best closing argument followed about a 4 day trial, as I recall, representing the largest private employer in the area. I delivered the closing after a pretty good first half plaintiff argument by the premier plaintiff ’s lawyer in this region of Kansas.

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I stood up and moved all the the equipment and stuff out of the way. This included the podium. Normally a lawyer gives a closing from in back of the podium or with it to the side so he can see notes. My movement of the podium stirred interest. Naturally there were lawyers in the crowd. After all, this was the gunfight. I proceeded to deliver an emotional 40 minute closing without a single note. There was no corporation only a few people who had to make a tough decision not of their choosing. At the end of the defendant’s argument, the plaintiff has additional time. When the plaintiff ’s lawyer got up, he just aimlessly fiddled around for a while. He hit a couple of previously made points. And sat down. He was stunned from my closing. His whole team two other lawyers and a paralegal - were stunned. Waiting on the verdict, the lawyers and Judge, agreed, without descent, I had won the case by my closing.

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The jury came back. The plaintiff won almost every-

thing she asked for. The reason I know about the opinions of the others come from first or second sources. One of these opinions came from the plaintiff ’s lawyer. He directly told several people. I had just made the greatest defense closing argument he had ever heard in his career and he was embarrassed at the second half of his argument. All the other can be bought with Master-Card; his opinion - PRICELESS.

Strategies Visualization There is a stage where lives are played out in drama and excitement. The Winter Olympics. Many years ago, I

was watching the Games and saw a great Strategy. As I watched different events, close up views of the athletes were shown. These images were not limited to a particular person or sport. It was quite strange. The athletes had their eyes closed and moving from side to side. I saw this several times before the announcer explained. The motion of the athletes with their eyes closes was a typical method used to go through the person’s athletic routine. For example, if a downhill racer was waiting for their turn, they would visualize the entire course. The process drew the athlete into the ski course and it was seen as he went down the run. The head moving back and forth was the skier going back and firth over the course. The athlete was visualizing. This is a tremendous technique. I saw this Winter Game years before I began to practice law.

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I do not recall when the realization struck me. The technique need not limit itself to athletes, but could be practiced in many situation. I began to think about it in terms of trials. What if I visualize a cross-examination, voir dire, opening, or closing. I began to practice on depositions. Visualize the witness testimony. If he says ‘x’ I will respond ‘y’; if he responds ‘a’ I will respond ‘b’. In this process I can go in to particular sections points of the case. In a back and forth process you evaluate all the witness responses you can imagine. The process was greatly enhanced in preparation for a trial. Good examples were opening and closing. I would already know, of course, the facts, witnesses and general approaches. The purpose of opening is to outline the facts you believe the evidence will show. Most lawyers do just that and this is a big lack in opportunity. Although we are not allowed to make argument, just set out facts, you need to push the thing. That’s a different story. The purpose of closing is much broader and always al-

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lows you to make more oratory.

ence greater respect to you.

Monologue Wal-Mart

Imagine the difference between two approaches. One lawyer reads or almost reads an opening or closing. The other stands and walks about in full view of the jury, referring to documents or whatever might be available. In fact I liked to put bullet points on a board. In this way I could have an outline in front of both the jury and myself. I would lose eye contact with the jury. But the real beauty is to visualize the event in your mind, over and over, until you see yourself clearly. The difference is significant. Now imagine you put this technique to use in whatever your job might be. If you have a presentation, an address or speech use this technique. You will find it provides you with greater confidence and will enhance the delivery. Regardless of whether use a blackboard, powerpoint, etc. it will allow you to have greater contact with your audience, and bring your audi-

This column’s subject matter has been on my mind since beginning this project. Coincidence finds my writing after visiting several stores during the holidays. Darkness is a common feel to these monologues. A fair criticism is that they are melodramatic. I apologize as this is not my intent. However, I see events in the country, and world, in broad terms. I feel helpless and angry we go about our lives and accept all the lies and greed of public and private sources; and, if that is not enough, we act as if our situations are just the way it should be. My thesis: the prior long standing business model was a vertical hierarchy from manufacture to small shops servicing consumers; and, the current business model is a contemporary example of the feudal system. It is based on a total elimination, or control of, competition (a purported cornerstone of this country). I know this need not be said, but I am educated in neither business nor economics. I

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have not done research. My comments are reflections on our system of goods distribution; therefore, the distribution of wealth. The current conduct of business plays out through a paradigm typified by Wal-Mart. I call it the Conquer Solution. One does not seek to belong to a group of like-minded business owners. Instead one seeks to conquer all other likeminded business owners to set a mini-monopoly. In other words, instead of being one of a group of hardware store owners, or one of a group of clothing store owners, etc. you put them all together, that is, Wal-Mart. Sometimes its a huge corporation, such as, Home Depot. It could also apply to smaller players. Both represent the paradigm. The thought process is the same and the outcome on society is the same. Its important to know that this is not just about business but about the effect the paradigm has on people. Paradigms are ways of viewing answers to questions. In the paradigm of the new feudal system there are Lords and serfs. And here are some areas of life as seen through the new scheme.

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➡ The entry of individuals into businesses dominated by Lords is so difficult it is almost impossible. ➡ There is a lack of employee benefits. The Lords of business work through Lords of insurance to control benefits. Over the past 10-15 years, both the type and value, of insurance have dramatically lowered. It was common for employers to pay the entire portion of family benefits. These benefits, in the past, were very good and easy to use. Today the cost of insurance has been transfered to employees. It is my guess that the wage deduction for benefits has risen at a higher rate than wages, effectually meaning the employe’s ability to purchase discretionary items is reduced. ➡ The Lords dictate wholesale product prices to their vendors. A Lords’ market share is so great, vendors cannot choose to go elsewhere for distribution. This forces small business to pay higher prices from vendors. This makes it impossible or small businesses to compete on price. ➡ The same point made previously applies up the line of distribution to the manufacturer. This puts increased pressure on manufacturers to

lower the number of, and benefits for, employees. ➡ The effects on manufacturers and distributors is a trickle-down effect in the form of lower wages and the lack of the ability to create profit to put back into business to upgrade machinery, etc. The means to upgrade machinery is replaced through credit arrangements. ➡ Lack of service. The Lords do not create environments of service because higher profit is attained by fewer employees. Instead, Lords create appealing ads that place a high value on service. ➡ Lack of employee product information. Training takes more employees to train and places new employees in nonprofit activity. Consumers are forced to find information about products from friends or from manufacturers’ websites or TV ads. Product information no longer comes from employees. ➡ The Lords hire too few employees. This accomplishes the focus on profit, but it also reveals how we have accepted too few employees. Local Business may be able to tackle the above problems, particularly service, but not to the degree to absorb the effect of Lord control of the manu-

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factures, the distribution and price of goods. The overall effect is a greater cost of health care, and other essential services, on to a population base with smaller paychecks. These people have no option other than to shop at the Lords. ➡ The Lords’ profit creates sufficient reserves to absorb the cost of constantly violating employment laws. In the case of WalMart, they are sued somewhere in the country several times every day. Its just a part of doing business. They also regularly other agency regulations. The WalMarts mean too much to local economies and they must be treated favorably. ➡ Lying to consumers is a corporate value, i.e., lying includes lack of necessary information, word trickery ➡Inculcate consumer with the idea that the value of product purchases should be based solely on price. ➡ Inculcate consumer to accept all of the above listed faults as acceptable corporate practice because product purchases are based solely on price. ➡ Lower wages and a lack of benefits to a sufficient percentage of the population means that more and more

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consumers have no purchase alternative other then the Lords. ➡The elimination of downtown businesses and ultimately the buildings themselves ➡ Withdrawal of middle class, which in turn withdraws a great amount of effort for buying power, work on city committees or charitable actions because these people leave or take much lower paying jobs.

Case Stories The Tornado Twins I was very surprised when I was called by the risk manager for Braum’s Ice Cream Company about a claim from the Parson’s store. Naturally I assumed it was a slip and fall claim. It was a premises liability case, but it sure wasn’t a slip and fall - it was about flying and falling. The facts. A few years ago there was a once a century storm and series of tornados in southeast Kansas and Parson really got hit hard. The plaintiffs were in the store for ice cream, just as the Parson destroyer tornado was coming toward the area from the southeast. Radio and telephone calls from employees’ family members told the story.

A large tornado was heading straight for Parsons. The manager decided to close the store. A store employee, a nice Vietnamese lady who could barely speak English, told the plaintiffs they had to leave. The plaintiffs left and on the way home the car was literally hit by the tornado. They were amazingly not badly hurt and recovered. But the lawsuit followed. Why didn’t the store warn the Tornado Twins? The store employees had superior knowledge and forced the Tornado Twins to leave while they stayed safely in the store. As luck would have it, the store manual said that in the case of a tornado customers are to be offered shelter in the store. We failed to do this. Now the Tornado Twins saw this as a simple case. I did not agree. The legal issue is whether a store owner is liable for negligence on the premises when the damages occur off the premises. In the end, the Kansas Supreme Court, in a published opinion, agreed with me. This case, despite its weird facts, adds to the body of Kansas common law on premises liability law. There was some interesting things about this case. The

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case was very close to a trial date when the Judge threw the case out and it went up on appeal. The company representative, at trial, was going to be none other than Drew Braums - the guy on TV! We had done a tremendous amount of work-up on this case. Only the kind authorized by a corporation. We wanted to show that we could not warn the Tornado Twins. Our information was not sufficient for the Tornado Twins or anyone else. The route of the storm was unpredictable. As a result we hired a forensic meteorologist. We obtained a number of computer frames of the course of the storm.

of a tornado, when in a car, stop and get in the nearest ditch.” It was the funniest thing a witness ever said and at the same time killed the factual case of a close relative. By the second or third time of such statements the Tornado Twins’ lawyer just put his head down on his hands. The work of the expert and the testimony of the children made this quite an interesting case. And there was the whole thing about the tornado too.

Secondly, when I asked about the reasonableness of their mothers they said, in essence, “I don’t know why they tried to get home. My father (the plaintiffs’ husbands) told us over and over that in the case

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I think so. I have urged throughout this work that such a relationship is needed to have a healthy state/society. The individual, as I see utilitarianism, is in a subordinate position to the state. However, only by subordinating the individual can the state/ society reach its greatest good. The greatest good is not perfect good. A society of individuals does not equate to individuals making a society. Either the individual or the society will be paramount. Unfortunately, our country does not see the importance of the difference.

But the best part of the factual case came with the Tornado Twins family members. Several children were named as witnesses. I took their depositions. I believe it was two or three of them said some startling things. First they generally said there wasn’t much wrong with them.

Imagine a society acting from Utilitarianism. Would it place an obligation on an individual of support towards the state/ society?

Strategies Utilitarianism “I can not fault the basis the greatest good for the greatest number.” John Stuart Mill (1860)

Mills’ Utilitarianism, is an ethical doctrine that the moral worth of an action is solely determined by its contribution to overall utility.

We have, by laws and judicial opinions, shown an indifference to the plain meaning of the Constitution. These actions have placed an unhealthy and wrong over-emphasis on the individual. An individual does not hold up a society, a society holds up all its individuals.

MONOL OG UES , CAS E S TUDIES & S TR ATEG IES

Monologue Spanish

make a loan payment, but was an expert at excuses.

I read a story today (11/2/06) that iTunes was going to have a special section devoted to Latin Rhythms.

His behavior irritates on the S&L’s (quite small in size) president over time. Although a nice guy the president and plaintiff really clash. One day the plaintiff asks the president if he wants to go outside. Taking this as a classic guy threat the president takes a revolver from his desk and says OK.

It would be of interest to know how many corporate CEOs and throughout upper management thinks President Bush is not doing enough to stem the tidal wave of Latinos who are illegally coming into this country. Society vs. Money. Who wins? At WalMart and other stores all signage is also in Spanish. And this is in the middle of the country. The Latinos have done what has seldom, if ever, been done before - take control of a far superior nation just by moving in!

Case Stories The Cured Diabetic This has got to be one of the most abusive cases ever brought. The plaintiff ‘s lawyer was Bill Watcher and this case is the cause for our mutual true dislike for each other. The case was totally weird in it’s factually basis. My client was a savings and loan in Ft. Scott. The plaintiff couldn’t

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You can imagine the fear, anguish, emotional anguish, blah, blah this response imposes to the plaintiff. And the suit follows. There is a completely odd claim to damages. The plaintiff claims that the defendant’s actions have made his a diabetic. Of all defense lawyers you’d think the defendant got a good one here.

The plaintiff ’s deposition is taken and I attack as hard as I ever have in a case. I, in essence, call him a lier. This is what enders me to Watcher. Following this we quickly take the doctor’s deposition and establish that the claimant’s diabetes was established before the incident and not worsened by the incident, The president and I are adamant to the S&L’s Board of Director’s to try the case. They refused because of “bad publicity,” which in corporate talk means I have no testes. However, I made all the settlement documents state that no money was paid by or on behalf of the president and he was released of liability.

Traumatic diabetes! The plaintiff offers medical records since the incident showing he is diabetic. He further explains he has never been a diabetic. When we have a case we do not move forward on the medical provided by the plaintiff. We subpoena all of the medical records. In reviewing the doctor’s records, prior to the incident, it shows that the plaintiff was previously seen by the doctor for diabetes.

A small change, but remember you have a client, and to him, these concessions meant everything. He retired and was last seen headed to Colorado. Sort of a trial victory, it was one of my most satisfying results.

Strategies Time “Time, time, time, see what’s become of me While I looked around For my possibilities” Simon & Garfunkle

MONOL OG UES , CAS E S TUDIES & S TR ATEG IES

What is time worth to you? What is worth your time? You have more time than you need at all stages of your life. Do you believe me? Where did I learn this? Remember, you need to learn from my mistakes too.

Monologue Astroprojection It’s really cool. My discovery. The ramifications are mind boggling. Imagine, the ability to transport yourself through mental projection. I know the current belief in mind control has pretty well gone out with Mr. Spock. But the current obsession with ancient beliefs and powers is quite strong, regardless of the topic. The story falls into two parts: discovery and setup.

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The discovery began with an ordinary workers’ compensation claim. It was a claim for a head injury after being hit by a forklift. Always watch for moving forklifts. It seems there was something wrong with the injury. Sadly we admit he is hit by the forklift. The rest of the claim dealt with the degree of injury. As always we didn’t believe it. Of course we never believe a claim or injury, but in this case, there is a disconnect between the initial medical records and the degree of injury to the head. The suspicion begins with our review of the initial hospital records. They did not reveal any evidence of injury. You would think that this would be good news to the claimant. After all, he had MRI, EEG, regular film x-ray, etc. But the claims of the claimant were pretty extreme. He was have all sorts of medical, mental, memory problems were the result of the accident.

Well, these are pretty serious charges. It called on serious investigation. And we did. We went through the military. Our investigation of the claimant was a long trial to get his medical records. But finally we did. This is the end of the first phase. The second phase of the medical discovery came during the claimant’s deposition. After I ask the deponent’s name, I like to go directly in to the medical. This is a different course of questioning than lawyers regularly prepare clients for and so I like it. I establish the state of the initial hospital records. I pay particular attention to the facts taken down by the nurses and doctors, and also, the statements of the claimant. They paint a picture of little medical problems. I then go in to a litany of current problems. It’s really long and terrible. I mention the fact claimant was in the military. We dis-

MONOL OG UES , CAS E S TUDIES & S TR ATEG IES

cuss his service and move to his service record - over great (and loud) objections. It seems that not everyone in this man’s army seemed to like being a soldier. The claimant found ways to end up in the brig. Now for what we’ve been waiting for - that’s why it gets its own paragraph. I ask the claimant to explain astroprojection. If you thought the prior objections were tough the lawyer was vociferous over this development. He truly had no idea. The court reporter was somewhere between amazed and dying to hear what was coming next. The claimant explained that his incarcerations were unfair and he was always innocent. But, regardless of what he thought, he and his brig-mates were pretty bored. It was during the down time that the claimant discovered he had an incredible ability. He was able to disconnect his mind from his body and leave the brig. His apparition was able to go about at will. In other words, the military police could hold his body, but not his essence. The ability is astroprojection. I know you probably think that having discovered this power he just went off and left his cell brothers. But not our claimant. He taught all those in the brig that wanted to know his secret. And its tough

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to keep a good ghost down and he soon had a significant following. In deed, his followers were so in awe of him he was their god. Just because lawyers do this sort of thing, I attach to the deposition the army medical records showing that the army shrinks had sent quite a lot of time with the claimant too. I wonder if the doctors ever learned the secret? Oh, yeah, the case settled really cheap.

Case Stories Einstein He Ain’t I had occasion to represent the YMCA in trial, a second time. This was a quite complex medical case with a father suing on behalf of his son. He alleged the boy received brain damage while in an afterschool program. My comments are really about the damages part of the case. The child had no fault and we had one less ‘supervisor’ for the kids than is required by state regulations. Translation: let’s focus on damages. The case is complex in two ways. The first is the plaintiff ’s lawyer. He only knows one thing - every thought he thinks is right. I’ll return to this later.

A head injury is always complicated. There are really several aspects. First is the initial injury. This is an area of potential damages. Next, damages for the brain injury will be very high. Finally, the case involved a young child, a second or third grader. Naturally, this case involved an emotional aspect unique to having a child as a party. A head injury is always very serious. There maybe high initial medical bills, long rehabilitation and economic loss. The cost in human emotion is incalculable. However, at the end of this case, none of these factors was present. The initial issues of trauma onset were remarkably modest. He had no medical to speak of, except for a trip to the ER. I believe he had one night of observation. The ER showed his neurological functioning. He was orientated and all that other numerological stuff. Actually the cry for damages was excessive from the very start. The lack of initial medical records forced them to focus the money claim on a head injury the father believed the child suffered. This in turn focused on both non-experts, such as teachers, and experts, such nureopsychologists. We interviewed all the teachers the child had before and

after the accident. There was a consistent response to our ‘before and after’ questions regarding his grade performance. He was slow, acted out and in general was at the bottom of class ranks. Naturally there were a lot of teachers. The interesting thing about the medical aspect is the nureopsychologists involved. The area of nureopsychologists is to medicine what quantum mechanics is to physics. It’s way out there. I employed three nureopsychologists to appear at trial to explain various aspects of the case. They performed I ndividually, as well as, a group, better than any experts I’ve had in a case.

This is a good place to talk about the plaintiff ’s lawyer. As I said he can not understand anything but his own voice. The case went to trial because he never changed his opinion about the case, even with all the factual evidence regarding

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both the teachers and nureopsychologists. So the case went to trial. The lawyer was as predictable as an atomic clock. One anecdote. As I said there were many medical experts. He examined each, and each one was asked the same questions and covered the same ground. I recognized this prior to my first expert coming up to testify. After a trial day I met with him. I went over all the points the lawyer would bring up. I discussed with him the points and discussed and messaged responses for all those questions. The next day, I went though the matters I wanted and sat down. I did not make any attempt to counter the plaintiff ’s points, even though that left out material we wanted in to evidence. However, the lawyer would not alter his habit and take advantage of our ‘weakness.’ Sure enough, he went through all the points and got dismantled by the expert. I can’t leave this out. The boy’s lawyer actually calls every teacher the boy has had as a witness. It is boring and after two teachers it was tedious and pointless. We had a folder on each witness. When it came to the teachers we had very little. When a new wit-

ness was called my paralegal would hand me the corresponding folders. Once, when the witness was called, I was handed a folder. I looked in to it, there was nothing there. The paralegal and I almost broke out in laughter. Another major fault with the lawyer’s strategy regarding the teachers was that he called all the teachers. It is only to be expected that all prior teachers knew nothing of the boy after the accident. So each time I cross-examined a teacher I was able to go over all of our main points which related to educational facts and testimony relevant to our nureopsychologists. Now, after awhile you think the lawyer would get the point and stop doing this as it was causing more harm than good. But not this guy. He had the witnesses scheduled so he called them no matter how much they hurt his case. The jury awarded some money for the actual accident, but significantly, rejected the claim related to brain injury. The award did not cover the costs! Inflexibility is not a positive attribute for a lawyer.

Strategies The Valve Division

address, he graciously introduced me to the audience.

Persistence. There are times a lawyer feels good because you figure something out.

One day, a QC (quality control) manager came to see me and asked me a few questions about liability issues. We spoke and he left. I thought no more about it.

I represented McNally’s exclusively for three years. It was a full time client. Everything from million dollar contracts problems, to regulatory problems, to union problems, to construction delay problems. Basically I was the problem guy. From the company President to the floor welder, everyone was my legal responsibility. When McNally’s closed I was heart broken. I knew the law would never be as good. It was a national practice in a small town in Kansas. At the time I worked for the company the valve division was already closed. It had once been a premier valve manufacturer in the United States. In fact there are McNally valves in several sensitive locations, such as, nuclear power plants. They supplied valves that were 12’ across to the TVA! However, it became unprofitable and the division was closed. My office had been built for and occupied by Ed McNally before his retirement. I always had great respect for Mr. McNally. When I was Mayor, giving the State of the City

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After hearing an overview I decided this was something that represented a huge potential source of liability claims. I took QC and proceeded to the Vice-President of Finance. I insisted the problem was potentially huge, which he did not want to hear.

A meeting like this happened a second time, but he was more specific, yet he told me it was nothing and left. I felt concern, but as I was busy it slipped my mind.

When QC came to me again with questions, I said we are going to sit here and you’re going to tell me what’s going on. He went on to tell me about the closed valve division, its history, downturn and now, problems. It seems a certain type of ball valve was failing. Complaint calls were increasing and coming from across the country. The valves were of a cheaper design. A valve allows or prohibits fluid moving along a pipe. A ball valve is round and an interior wall rotates to either allow or prohibit the fluid. The fluid could be water, sludge, waste, etc. The valves were failing; simply put, you couldn’t tell if they were open or closed.

By coincidence McNally’s had just hired a manufacturing consultant. He was asked to join the group and immediately saw the scope of the problem. He and I spoke increasingly quicker as we talked about potential problems and the need for damage control and negotiated settlements. This process took months and carried me from New York (sewage) to Houston (water to international airport), California (valve under highway), Portland, Oregon (they were really mad) and Las Vegas (no kidding - they kicked us out of the room). It was so cool. It made me feel very good to think I had put all this in mo-

tion to protect a client - the best client I ever had.

Monologue The Difference “Science, the largest religion of the Twentieth century, had become somewhat tarnished by images of exploding space shuttles, crack babies, and a generation of of complacent Americans who had allowed the television raise their children.” Jim Butcher, “Storm Front”

I assume, but do not know, that Butcher is an extremely smart guy. But I do not believe him to be correct. Science has been a major part of human life for millennia. The basic scientific language (mathematics) was in place to build a pyramid. The ancient Greeks gave us Euclidian geometry. The idea of scientific method is part and parcel of the Renaissance. From the Nineteenth Century, and forward, industrial, medical, scientific discoveries speed by. The events set out in the quote are tragic, but is science a religion? Religion seeks to answer where we come from; our essence; and, what happens after death. Scientists do not seek to answer these ques-

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tions. They try to quantify the known world.

dren,” is correct. The difference today is HDTV.

The quote does support a different idea; that is, one’s ‘individual interest,’ is a nonecclesiastical religion. The comparison of religion to a person’s individual interest is worrisome. Religion is a fundamental part of a portion of a society, not the sole interest of the individual.

On another line of thought, I am listening to a podcast from Princeton by a panel discussing American Civil Religion. It is a fascinating idea with which I am unfamiliar.

I think it also argues, correctly, that ecclesiastical religion is largely gone. Regardless of whether the alternative is science, we have traded traditional ideas of religion, as a belief in god, to self-interest. This argument supports my overall theme that American society has changed into a complacent group of individuals full of self-interest and no interest in the idea of society or country. The part of the quote, “a generation of of complacent Americans who had allowed the television raise their chil-

The key precept is to melt religion and civics. The city of

god and the city of man is a governing principle in the founding of of our country.

The Social Contract by Rousseau has a separate chapter entitled “Civil Religion.” “The subjects then owe the Sovereign an account of their opinions only to such an extent as they matter to the community. Now, it matters very much to the community that each citizen should have a religion.

“Each man may have, over and above, what opinions he pleases, without it being the Sovereign’s business to take cognizance of them; for, as the Sovereign has no authority in the other world, whatever the lot of its subjects may be in the life to come, that is not its

idea that religion and civic duty are intertwined in a country. The speakers say that the American principle documents, such as the colony compacts, the Declaration of Independence set out values that are consistent with religion but the documents do not set out one in particular. In fact, the documents state that all faiths are allowed and are to be protected.

Case Stories Don’t Play With Rope

business, provided they are good citizens in this life. “There is therefore a purely civil profession of faith of which the Sovereign should fix the articles, not exactly as religious dogmas, but as social sentiments without which a man cannot be a good citizen or a faithful subject.” I find this quote extremely interesting. The panelists also quote Locke at length to express the

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Many children play on a rope swing, climb a rope, or construct a hangman’s noose. I guess it depends on the kid. I had a case that hinged on old-fashioned manila rope. The tree trimming Tash family from Riverton was hired to take down some trees on a farm. There are three of them, a father and two boys. The team used a bucket truck to aid them. It was of standard design with an extending bucket controlled either at the rear of the truck or from the bucket. Apparently the rope was used to tie off limbs after

trimming and lower them to the ground. The bucket was also used to move pieces from the ground to a dump truck for site removal. The rope was actually a manilla rope as in Manilla, The Philippines. It was purchased by a distributor in Chicago, then through the True Value distribution center in Kansas City to the Baxter store. The Tashs purchased the rope from there. This is called a chain of distribution. On the date of the accident the Tashs removed a tree, using the bucket. Arley, the father, was in the bucket. The manilla rope was also in use. The group tied the rope off on to a large piece of trunk. Unfortunately the trunk was still attached - to the ground. To the apparent amazement of the Tashs the rope did not hold! Now it gets problematic. Dad is thrown out of the bucket. According to the Tashs, this results from the bucket whipping upward from the force produced from the breaking rope. Dad is thrown from the bucket and badly hurt. Therefore dad’s injury is the rope’s fault??? A suit is filed against the Manilla Rope Company; the distributor and the local True

Value store. I represented the distributor. It was a great way to get to Chicago. It was a very expensive suit due to the nature of suing a part of the chain of distribution. Does the entire premise of this suit seem ludicrous? You bet. It also represents how different defense lawyers can look at the same situation and approach it from different angles. The other defense lawyers thought about the defense in terms of Tash’s individual’s fault by using a manilla rope to do the job. I thought the best way to get to a defense outcome was to focus on the bucket truck. Specifically is it even possible that a catastrophic failure of the rope cause the bucket to move sufficiently to throw Tash out of the bucket? The amount of force required could not be generated by the stored force within the rope. As a result I went out and found a retired engineer who worked on bucket trucks. I found one in Columbia, Missouri. As it turns out, my guy had worked on the same model of truck involved in the case. I had him come out and make measurements of the truck, etc. It turns out that

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the bucket would have moved at most 1”. It was always my view that after the rope broke, Tash climbed over the bucket to try to fix the problem or direct his boys on what to do. Whatever, we all won.

Scientists do not acknowledge the limitations of man or the power of creation; but, though the cloud of deduction, and belief in test tubes, arrogantly believe they can answer all questions: it is just a matter of time. God took all prior, present and future time to allow His plan to unfold. I wish man was in awe and patient.

Strategies Descartes I t hin k , t h e re f ore , I am. Discourse on Method, (1737) By Rene Descartes Descartes also made a beautiful argument on the existence of God whom Descartes saw as representative of the beauty that science sought to ignore and sought to make men more intelligent than God. We often fail to appreciate the beauty of God and the landscape he brought about. Science provides a sense of one’s own importance or abilities, placing ourselves equal to or above God. It’s fascinating how Descartes, in 1737, observed the fundamental split between science and faith, which must have begun from the Renaissance.

Monologue Love “For it is to be considered that this passion of which we speak, though it begin with the young, yet forsakes not the old, or rather suffers no one who is truly its servant to grow old, but makes the aged participators of it, not less than the tender maiden, though in a different and nobler sort. For it is a fire that, kindling its first embers in the narrow nook of a private bosom, caught from a wandering spark out of another private heart, glows and enlarges until it warms and beams upon multitudes of men and women, upon the universal heart of all, and so lights up the whole world and all nature with its generous flames. It matters not, therefore, whether we attempt to describe the passion at twenty, at thirty, or at eighty years. He who paints it at the first period will lose some of its later, he who paints it at the last, some of its earlier traits.

Every thing is beautiful seen from the point of the intel-

lect, or as truth. But all is sour, if seen as experience. For persons are love’s world, and the coldest philosopher cannot recount the debt of the young soul wandering here in nature to the power of love, without being tempted to unsay, as treasonable to nature, aught derogatory to the social instincts. But be our experience in particulars what it may, no man ever forgot the visitations of that power to his heart and brain, which created all things new; which was the dawn in him of music, poetry, and art;

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which made the face of nature radiant with purple light, the morning and the night varied enchantments; when a single tone of one voice could make the heart bound, and the most trivial circumstance associated with one form is put in the amber of memory; when he became all eye when one was present, and all memory when one was gone; when the youth becomes a watcher of windows, and studious of a glove, a veil, a ribbon, or the wheels of a carriage; when no place is too solitary, and none too silent, for him who has richer company and sweeter conversation in his new thoughts, than any old friends, though best and purest, can give him; for the figures, the motions, the words of the beloved object are not like other images written in water, but, as Plutarch said, ‘enameled in fire,’ and make the study of midnight.” Love, from Essays: First Series (1841) by Ralph Waldo Emerson

WOW!

Case Stories What Did I Do With That Arm The plaintiff is a farm hand for an old fellow in Labette. It is time to combine the crop. The farmer and hand are working on the combine while it is running. The two men became somewhat separated. The farm hand screamed. His arm had become engaged in the cutting part of the machine. He lost his arm. To the plaintiff ’s lawyer the case was easy. The farm hand was injured by a combine owned by the farmer. Period. Why ask why. We do not accept the simple theory of the plaintiff. We obtain photos of all angles of the combine. These photos include all the safety decals. We obtain information from the combine’s manufacturer. We diagram the entire workings of the combines. Each step begins by asking ‘why.’ At the risk of sounding childish, all the ‘whys’ lead to ‘how.’ We know how the accident happened. The difference between the two approaches comes in the closing arguments. The plaintiff ’s lawyer tells the jury his

client was hurt on the defendant’s land and it was our fault. But they have not asked the question “why.’ As a result, they failed to answer the question of ‘how.’ Because we started out by asking ‘why’ we answered the question ‘how.’ We explained it at the time of closing. I went through a full demonstration for the jury of ‘how’ the accident occurred. We did a complete job of the task of explaining the accident.

The plaintiff ’s lawyer, in the second half of his closing argument, and I mean this literally, did nothing but ask for money and take piety on the plaintiff.

The jury took very little time to rule for us.

Strategies Friends Today I thought to write down a list of my ,iends. I worked diligently. When I was done, I put the empty, blank paper on my desk. John O’Connor

I saw an article about a young firefighter severely injured on the job. Interviews of family members and friends made it clear he fought for life. Even though the circumstances are

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awful, the wonderful opinions of friends come from knowing him. There is no reason to doubt their opinion. It makes me wonder - not about the firefighter, but myself. I am morose. Don’t become middle-aged and have more stories about work, than about friends. Keep your friends. Make new friends. Keep in touch. Call. Send e-mails.

Monologue A Unicorn While in Wichita, I was ordered to represent a woman who was accused of welfare fraud. The basic facts were that client was receiving welfare for some time. She obtained employment at the Coleman products plant. However she did not inform the SRS officials, and so, continued to receive benefits. Since she was not a politician this sort of thing is seen as fraud. When I talked to her the real facts came out. She was a single mother. She barely made it from month to month. I found out the human side of poverty. She was far from lazy or stupid. She tried and

tried and finally got a job. What was her crime? Keeping money that made keeping her child fed? Paying the electric bill? I mean real poverty up close, speaking to a nice person who was going to jail so her daughter could have milk. Quite the felon. It’s not exactly Martha Stewart. She stole untold millions. That’ a lot of milk. Her name, Artis Speed. I don’t remember the name of her daughter, but its because of the daughter I remember Aritis. When everything was over (good result with the help of a friend in the D.A.’s office) I saw Artis. Her daughter was there. As I said goodbye, Artis said that her daughter had a present for me. I protested but Artis told me her thatbdaughter wanted to give something to the man who helped her mommy.. It was a little ceramic unicorn. I doubt it cost 50 cents. The unicorn reminds me of some of us who live in endless poverty and never ending hope; the tenacity of a mother’s love and the simplicity of a child’s world; and, the purity of a child’s thank you. However, since the day I received the little unicorn, it has been on my desk for over 20 years.

Case Stories First Kansas Supreme Court Appeal There are some events that really make you feel like a lawyer. These moments are far removed from the general public and even from most lawyers. There is a solemnity, pomp, seriousness about the event. And the seven justices peppering you with questions. That separates the common from the very good. Standing before the jury is the best. But standing before The Supreme Court is extremely special. I had the opportunity to appear before the Court of Appeals many times and the Kansas Supreme Court three or four, I’m not sure. I have also appeared before the Tenth Circuit Federal Court of Appeals in Denver several times. I had the honor of being involved in cases that established new law in the meaning of the terms of a CGL insurance contract relating to “sudden and unexpected” release of pollutants; the law relating to the right of one spouse to sue the other spouse; the violation of constitutional rights of a party when one of the jurors is discovered to be

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hard of hearing and therefore unable to fulfill their statutory duty to individually evaluate the evidence; and, the limitation of commercial property owners for damages arising from negligent acts on the property but the damages occurred after the plaintiff left the property. My first appeal to The Supreme Court was a criminal case. I was assigned by the Court to represent a guy in an armed robbery. During the “get-away” the robber threw the gun out of the car. The police soon found the robber, but never found the gun. The law required that an armed robbery required a ‘firearm.’ Case law established that a ‘firearm,’ for the purpose of the criminal law, had to be ‘operational.’ My position was that since the police never found the gun they could not establish it was ‘operable.’ Since the police must establish every element to a crime I felt that as a matter of law the police could not establish an operational ‘firearm’ was used. The members of the Court were polite and smiled at me. As this was the first time I appeared before the Court I

thought this was a good sign. It was not. To this day I feel the logic was unassailable. I guess those seven guys didn’t think so.

Monologue Funny Is Where You Find It We had a work comp claimant whose case was set for hearing. In conducting our background investigation it was discovered the claimant had an outstanding arrest warrant. We contacted the Sheriff that if he were at a certain place at a certain time there was a very good chance they would have an arrest. At the day of the hearing, both claimant and officers were present. The coincidence of the chance encounter took us all by complete surprise - well to be honest the claimant and his attorney might have been a little more surprised. The men of the law did their duty. The Claimant was taken away in cuffs in front of a whole room of people. When the Judge called his case, it seemed the Claimant was not present. His lawyer made a request for a postponement. I did not object.

Grandfather Meaning My grandfather has an enormous place in my heart. At Ryan’s birth, my grandfather and I walked down a hospital hallway. We were both quiet. Stopped. Looking at me, he said, “We have seen a miracle”.

There is a power in soft spoken, simple words, spoken with love and complete faith in God.

miracle of birth, but with the passage of time. I see as a grandfather; I see more. I see the future. First day at preschool. First dance recital, first boyfriend, high school and all that comes afterward. I touched a miracle of life three more times.

Now, reminiscing about the walk with my grandfather in 1979, I am a grandfather. I have once more seen the

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I believe now that my grandfather’s insight was even greater than I first understood. There is more to my grandfather’s words. There is the miracle of Ryan’s birth, but there is also the beginning of the next generation. One

generation, my grandfather, seeing the next family generation safely in to the world. He was telling me my time would come too. A new miracle would take place. He foretold the next generation. Now, it is my turn. Aidyn, WELCOME. You are a miracle.

   1 O CAPTAIN! my Captain! our fearful trip is done;

This much I have learned.

The ship has weather’d every rack, the prize we sought is won;   The port is near, the bells I hear, the people all exulting,   While follow eyes the steady keel, the vessel grim and daring: But O heart! heart! heart!   O the bleeding drops of red,   Where on the deck my Captain lies,  

3

In the end, a man is not judged by what he has done, but who he is as a human being.

My Captain does not answer, his lips are pale and still;   My father does not feel my arm, he has no pulse nor will;  

I am satisfied that, taking all matters of my life in to account, I will be fairly judged.

The ship is anchor’d safe and sound, its voyage closed and done;   From fearful trip, the victor ship, comes in with object won;

Fallen cold and dead.

John O’Connor

Exult, O shores, and ring, O bells!

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  O Captain! my Captain! rise up and hear the bells;

But I, with mournful tread,    

Walk the deck my Captain lies,

Rise up—for you the flag is flung—for you the bugle trills; For you bouquets and ribbon’d wreaths—for you the shores acrowding;

  Fallen cold and dead.  

For you they call, the swaying mass, their eager faces turning;

Walt Whitman, Leaves of Grass (1900) Written as a memorial to Abraham Lincoln. I see it in broader terms about the death of any father.

 

Here Captain! dear father!   This arm beneath your head:   It is some dream that on the deck, You’ve fallen cold and dead.

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  Tybee Island, April, 2006.        

If Rudyard Kipling

If you can keep your head when all about you Are losing theirs and blaming it on you; If you can trust yourself when all men doubt you, But make allowance for their doubting too; If you can wait and not be tired by waiting, Or, being lied about, don't deal in lies, Or, being hated, don't give way to hating, And yet don't look too good, nor talk too wise; If you can dream and not make dreams your master; If you can think - and not make thoughts your aim;

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If you can meet with triumph and disaster And treat those two imposters just the same; If you can bear to hear the truth you've spoken Twisted by knaves to make a trap for fools, Or watch the things you gave your life to broken, And stoop and build 'em up with worn out tools; If you can make one heap of all your winnings And risk it on one turn of pitch-andtoss, And lose, and start again at your beginnings And never breath a word about your loss; If you can force your heart and nerve and sinew To serve your turn long after they are gone,

And so hold on when there is nothing in you Except the Will which says to them: "Hold on"; If you can talk with crowds and keep your virtue, Or walk with kings nor lose the common touch; If neither foes nor loving friends can hurt you; If all men count with you, but none too much; If you can fill the unforgiving minute With sixty seconds' worth of distance run; Yours is the Earth and everything that's in it, And - which is more you'll be a Man my son! And Maureen, you’ll be a Woman, my daughter!

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do not go gentle into that good night by Dylan Thomas Do not go gentle into that good night, Old age should burn and rave at close of day; Rage, rage against the dying of the light. Though wise men at their end know dark is right, Because their words had forked no lightning they Do not go gentle into that good night. Good men, the last wave by, crying how bright Their frail deeds might have danced in a green bay, Rage, rage against the dying of the light. Wild men who caught and sang the sun in flight, And learn, too late, they grieved it on its way, Do not go gentle into that good night. Grave men, near death, who see with blinding sight Blind eyes could blaze like meteors and be gay, Rage, rage against the dying of the light. And you, my father, there on the sad height, Curse, bless, me now with your fierce tears, I pray. Do not go gentle into that good night. Rage, rage against the dying of the light.

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