Now What?

The election is over. What did we learn?

The turnout was excellent when compared to recent elections, but the election exposed mechanical flaws, breakdowns, unpreparedness and likely voter suppression.

In some places voters on Tuesday had to wait 3-4 hours. Would you vote if you had to wait 3 hours and had a job or child care issues to deal with?

In Houston, polling places in key areas opened late, which caused some voters to leave without voting.

There were voter registration and polling place issues at Prairie View A&M.

According to Associated Press reports, problems with voting machines occurred in New York City, Detroit, North Carolina, Geogia, Texas and elsewhere.

The most egregious example of suppressing voters came in Georgia where the Secretary of State, who oversees voting, was running for Governor. He purged hundreds of thousands from voter polls and tried to disqualify about 53,000 recently registered voters. He narrowly won, but at the cost of his personal integrity and the integrity of the democratic process.

There are, of course, the structural issues caused by pervasive gerrymandering and the results can been seen across the country.

Now that we know we are vulnerable to election interference from outside forces and that our voting apparatus is also suspect, isn’t it time to do those common sense things necessary to get people registered, make it easier rather than harder to vote, and protect the ballots that are cast?

Teen Driving Deaths

We are fortunate and proud to be the home of the Texas A&M Transportation Institute, which is the premier transportation research institute in the world.

On 11/07/18, the Houston Chronicle published an article by Lisa Minjares-Kyle of Texas A&M Transportation Institute regarding teen crash deaths. According to the article, car crashes remain the number 1 cause of death and injury for teens. Teen car crash deaths were actually on a decline before the trend reversed in 2013. What happened?

Texting or talking while driving. Texting doubles a driver’s reaction time. Although teens acknowledge the risk, more than 1/3 say they talk or text “some” or “a lot” while driving.

The presence of teen passengers raises the crash likelihood for teen drivers. Ms. Minjares-Kyle cites a Temple University study which proves young adults were about 50% more likely to make riskier decisions in the presence of friends, and adolescents were more than twice as likely to do so. My anecdotal experience as a parent and lawyer bears this out.

Nighttime conditions are particularly dangerous for inexperienced drivers. Data from the Centers for Disease Control and Prevention shows that 1/3 of teen crash deaths happen between 6 P.M. and midnight.

According to the article, teens believe that alcohol is the biggest threat, but only about 1 in 10 admit to drinking and driving, 80% say they never do, and alcohol is a factor in only about 12% of fatal crashes involving 16 to 17 year old drivers.

It seems clear that years of public information campaigns regarding the perils of drinking and driving have had a positive impact, but that the same sort of campaign has not been effective to combat cell phone use.

Ms Minjares-Kyle had this to say: “For teens, cell phone use is more than just a habit; it’s a functional addiction. We should work on breaking that cycle so the dependency isn’t so overpowering when they get in a car.”

I can only add that the “functional addiction” problem applies to more than teenagers.

Voting

Photo by: amberzen https://pixabay.com/en/users/amberzen-1239031/

It is election time, for better or for worse.

I half expect a public announcement any minute that Russians, Chinese or someone else has “hacked” the election. Where once that idea would have been laughable, it certainly isn’t anymore. One can only hope that our intelligence agencies, cybersecurity experts and election officials are successful in protecting the vote itself.

As serious and threatening as the idea of election meddling by a foreign government or non-state actors might be, the truth is that we are most vulnerable to the pernicious attacks on democracy by our own political system.

The most obvious form of political manipulation is gerrymandering with its evil twins, “packing” and “cracking”. There are also voter ID laws, limitations on absentee voting, purging of voter rolls, laws restricting or eliminating the right of ex-felons to vote, voter registration restrictions, closing polls at an early hour, particularly during the early voting period, and, the most obvious of all, holding elections on a weekday when most people have to work and can’t leave work to vote.

It seems clear that all of these hurdles, particularly when taken together, are put in place to suppress voter turnout and thereby influence the outcome. I have even heard educated, serious people claim that it is the duty of any political party in power to stay in power through whatever means are available. That sort of thought process led us to where we are today. Even George Washington saw party politics as dangerous to democracy. His fear was not misplaced.

Shouldn’t our aim be to encourage voting? Is it in any way healthy for a democracy to have elections decided by a small fraction of the eligible voters? Isn’t it true that this systematic voter suppression has led to a majority of the population feeling helpless, disenfranchised, angry and polarized?

The argument to the contrary is always that we need laws which guarantee the integrity of the vote and that if people don’t care enough to overcome all of the obstacles in their path to vote, then they should lose. Both of these points are specious.

A person is more likely to be struck by lightning than to cast a fraudulent ballot. That is not hyperbole, that is a fact.

As to the overcoming of obstacles to voting, who among us can truthfully say they would vote if being late to work or leaving early from work to vote will cost us our job or if waiting in line to vote interfered with taking children to school or disrupted child care arrangements?

For more about this important issue, see the article “Taking Back the Vote” that appears in the October 29, 2018 issue of Time.

Don’t forget to vote and take a friend!

VOTER RESOURCES:

https://www.eac.gov/voters/resourcesforvoters/

https://www.votetexas.gov/

https://www.usa.gov/voting

https://www.vote.org/

https://www.theeagle.com/news/elections/

https://organizetexas.org/resource/informacion-sobre-como-registrarse-para-votar/?lang=es

Rivers Aren't Sewers

Photo Credit: Bluesbby

On Tuesday, October 16, 2018, the Houston Chronicle ran a front page story, “EPA Eyeing Water Well Rules,” which said the Trump Administration may change federal clean water regulations to allow oil and gas companies to discharge their wastewater directly into rivers and streams. I was so astonished that I had to read it twice. Could it really be true that the EPA under Trump is willing to throw away years of progress on water pollution in order to placate the oil and gas industry? Has the Trump Administration forgotten that the EPA began as a Republican idea during the Nixon Administration?

The background of the situation is that oil and gas drillers, particularly those in the Permian Basin, are reaching capacity in their disposal wells and they are also having to truck their waste water a long way, which is expensive. Waste water recovered from drilling operations, including frack water, is also difficult and expensive to treat. Therefore, the solution that is most obvious to the EPA and the Texas Railroad Commission is to “loosen” the environmental standards. That’s good for the drillers and their profits, bad for the environment and the public.

This is actually a double whammy for Texas.

Drillers use enormous amounts of scarce, valuable, clean water for drilling and fracking and, if this change in policy occurs, the drillers will then be permitted to discharge contaminated water back into the rivers and streams that feed our drinking water supply. This doesn’t seem like a good deal for Texas. Just ask the folks in Pennsylvania who wound up drinking bottled water after a similar plan failed there.

The Price of Power

Photo is property of en.wikipedia.org

I have long wondered why politicians cling so tenaciously to their offices. Is it the money? Is it ego? Is it the perks and benefits they receive from the government and the innumerable lobbyists that court them? Is it the power, prestige and fame? Is it the sense of privilege and entitlement? Is it the possibility that a high office will position them for a lucrative career after politics? Is it devotion to a political party or a political ideology?  Is it a belief in civic responsibility and patriotic duty? Maybe it’s a little bit of everything, but no one can doubt that getting reelected is of great importance to almost all of them.

On rare occasions events occur which bring into the sharpest possible focus what politicians will do, what they will say and how far they will go to stay in office.

Everyone knew long ahead of time that the Kavanaugh confirmation would be brutally contentious  for many reasons and would come down to just a few undecided Senators: Susan Collins, the self-described moderate Republican of Maine; Jeff Flake, a Republican from Arizona; Joe Manchin, a Democrat from West Virginia; and, Heidi Heitkamp, a Democrat from North Dakota. All of these Senators, except Flake, face reelection and are in very close races. In the end, all but Heitkamp voted in a way that enhanced their chance of reelection or, in Flake’s case, a chance of keeping his future political career alive in his deeply red state. Heitkamp bit the bullet and voted against Kavanaugh even though it is obvious it will hurt her in her home state, which voted overwhelmingly for Trump.

There may not be a greater crucible than a Supreme Court confirmation in which to test a politician’s mettle. The choice for these Senators was to vote for confirmation of a lifetime appointee to the nation’s highest court and thereby give themselves the best possible chance of being reelected, or vote against confirmation and hurt or destroy their chances of reelection. Another way to put the question might be whether a Senator, who serves a 6 year term, is more or less consequential than a Justice on the United States Supreme Court, who serves a lifetime? I feel certain the Senators who voted for confirmation will say they voted for what they thought was right even though their votes happened to coincide with their own best interests, but no matter how you see the Kavanaugh confirmation, you have to admire and respect Senator Heidi Heitkamp.

A famous athlete who took a controversial stand in the past that cost him dearly was asked recently why he did it. He said it was because his father had told him: “When you could, you wouldn’t. Now you want to, but you can’t.”  Senator Heitkamp didn’t miss her chance.

Photo is property of en.wikipedia.org

Some Good News about Safety

Photo by: Lorilee Brabson, taken as they were setting up the balloon for launch. Lorilee Brabson, along with her daughter, Paige Brabson, were among the victims of the crash / Photo acquired from the Austin Monthly article “Tragedy in Lockhart”.

It doesn’t happen often, but once in a great while politicians do the right thing for the right reason.

I have a very dear friend who lost her only child, a beautiful daughter, and her son-in-law, a gifted medical researcher and fine man, in the balloon crash that occurred near Maxwell in Caldwell County, Texas on July 30, 2016. As it so happens, the son-in-law was the son of another friend of mine. A 5 year old son, my friend’s grandchild, was, very fortunately, not on the balloon ride. 15 passengers and the pilot were killed that day.

A subsequent investigation concluded that the pilot was probably trying to land the balloon due to wind and weather and, in the process, collided with power lines carrying 340,000 volts of electricity. All of the balloon’s passengers were burned beyond recognition.

The pilot had been licensed in 1993. He had an extensive criminal record dating back to 1987. He had been in prison twice for drug and alcohol-related offenses. He didn’t have a Texas driver’s license. His Missouri license had been revoked for repeated DWIs and he wasn’t even eligible to apply for a Texas license. A toxicology report on the pilot showed he had multiple prescription drugs in his system including Oxycodone, Valium, Prolev and Ritalin. The pilot had multiple medical conditions including insomnia and allergies for which he was taking Benadryl. At least 6 of the medications detected in his blood appeared on the FAA’s “Do Not Fly” or “Do Not Issue” lists. To cap it off, the pilot had a history of complaints from prior customers, including an injury, and on this particular day, chose to fly in weather (wind, fog and clouds) that was questionable enough that other balloon operators in the area cancelled their flights that day.

The horrific crash brought to light what to me is an inexplicable flaw in the law: the pilot of a commercial balloon is not required to have a certificate certifying medical fitness to fly. Instead, the FAA said it would expect the pilot to “self-report” if he were unfit to fly. I can’t begin to imagine how the survivors of the victims must have felt when they were told of this insanity.

It actually gets worse. A pilot can begin to apply for a commercial license with 250 hours of documented flight time. Helicopter pilots must have at lease 150 hours to apply. There are strictly enforced licensing rules that require written testing and demonstrations of proficiency in flying. If you want to be an airline transport pilot, the requirements are: 1,500 hours of flight time (1200 for Helicopter), 500 hours of cross-country flight time, 100 hours of night flight time, and 75 hours instrument operations time (simulated or actual). Other requirements include being 23 years of age, an instrument rating, being able to read, write, speak and understand the English language, a rigorous written examination, and being of good moral character. On the other hand, a person can apply for a commercial balloon certificate with only 35 hours of flight time and an applicant is not required to demonstrate proficiency on bigger balloons such as the one that crashed.

In short, this tragedy exposed gaping holes in safety regulation and a surprising and disconcerting difference in regulatory philosophy between the National Transportation Safety Board (NTSB) and the FAA.

If any situation ever cried out for a regulatory agency to take action, this had to be it. But, nothing happened. After waiting a respectable time, elected officials from the area of the crash approached Representative Lloyd Doggett of San Antonio to ask for his help. Doggett then waited for the FAA to act. After a few more months of inaction by the FAA, Doggett filed a bill called the Commercial Balloon Pilot Safety Act. Doggett’s strategy was to add his bill as an amendment to the bill that authorizes funding for the FAA. The Doggett amendment mandates medical exams for commercial balloon pilots.

The bill, including Doggett’s amendment, passed both Houses last week and is awaiting the President’s signature.

It is too late to help the grieving families, but it is a victory nonetheless.

For much more about this tragedy, read the excellent article by Gretchen M. Sanders, Tragedy in Lockhart, which appears in the October issue of Austin Monthly.

What to Do About Football Concussions?

On Friday, October 5, 2018, the Houston Chronicle ran a frontpage story about a Santa Fe, Texas husband and wife who have sued the school district, coaches and others in federal court for a severe closed head injury sustained by their son while playing football. The most unusual thing about this case is that it alleges the child’s civil rights were violated by not protecting him from head injury and brain damage.

The basic facts of the case are that the young man was playing junior varsity football as a sophomore in 2016. A coach decided to scrimmage the junior varsity against the varsity. After the practice, the young man reported dizziness, vomiting and drastic mood swings. Tests revealed a severe concussion and that he had sustained at least 1 prior concussion. The child has never fully recovered. To make matters even worse, the child was shot during the massacre at Santa Fe High School in May, 2018.

Why, you may ask, are the parents alleging a violation of their child’s civil rights? The answer is what is known as the legal defense of “governmental immunity”. The defense of governmental immunity prohibits lawsuits against governmental entities unless the State has waived the immunity in what is known as the Texas Tort Claims Act. The exceptions to governmental immunity in Texas are very few, narrowly drawn and strictly enforced. School districts, universities, colleges and junior colleges have even broader protection (immunity) than other governmental entities. In other words, the parents would have no chance of winning the case if they filed suit in a state court and alleged negligence. In fact, if that sort of case was filed, a judge would dismiss it without a trail.

Can the parents win the case they have filed in federal court? It is an inventive and novel approach to attempt to get around the sovereign immunity defense, but I think it will ultimately fail.

Setting aside the legal issues for a moment, the question of what can be done to protect players from closed head injuries is staring us right in the face. Some improvement has been made. Almost everything I was taught about tackling and hitting is now against the rules. That’s a good start, but it is probably not enough. Unless the rules are changed drastically and/ or unless there is some unforeseen helmet technology breakthrough, head injuries will still occur. With all of the football palaces we have built across the country, it seems highly unlikely that high school and college football will cease to be played. However, more and more parents are starting to say “no” to football. Will this eventually change the game to the point that only the very best, most talented and most needy play? Your guess is as good as mine.

The Fightin' Texas Aggies

Photo is property of Sports Illustrated.

If you watched the ballgame against Arkansas, you saw Coach Fisher jump into a scuffle that involved one of our best defensive players, Tyrel Dodson. Coach Fisher grabbed Dodson’s facemask and pulled it down as he spoke forcefully to Dodson. It seemed clear at the time Coach Fisher was trying to make sure an all-out fight didn’t break out resulting in a penalty and Dodson being ejected. My immediate reaction was that Coach Fisher was doing exactly what he needed to do. I think it is even possible that the game officials didn’t throw a flag and didn’t eject Dodson or anyone else because they saw that Coach Fisher took control of his player. I don’t know what Coach Fisher said, but it worked, and it helped Dodson and the team.

I was surprised  when a few sports commentators and others began criticizing Coach Fisher even though Tyrel Dodson and other players on the team were praising Coach Fisher. Why the backlash? Why did outsiders see abuse of a player when I saw a coach acting like a father coming to the rescue? I’m biased, but I’m not blind.

First, I don’t think we can overlook the fact that national sports commentators are paid to say something and, if that something is controversial and can be debated for at least a week or until something else comes along, so much the better for them. It would also be naïve to believe commentators don’t have favorites.

Second, college football is highly competitive and those schools that choose to compete at the highest level will seize every opportunity to criticize a rival.

Last, there have been actual incidents of players being seriously abused or neglected by coaches, athletic trainers and team doctors. The death of a ballplayer at Maryland from heatstroke comes to mind. A recent episode of Real Sports with Bryant Gumbel was a real eye-opener regarding the lethal danger of heatstroke and how unprepared most athletic departments are to address it. There are also instances of verbal abuse and intimidation of players by coaches like Bobby Knight and others. There is a need to be vigilant in the protection of players from physical injury or death and senseless mental abuse.

On the other hand, shouldn’t we use some common sense in distinguishing between what is abuse and what is coaching, teaching, discipline and tough love? Common sense tells me Coach Fisher didn’t intend to do harm and is being unjustly criticized in this instance.

Whom to Believe?

Photo is property of : Jim Bourg and Saul Loeb, distributed by the Associated Press

Like many of you, my wife and I watched the testimony of Dr. Blasey Ford and Brett Kavanaugh. Then we listened to the politicians and commentators dissect the testimony on television and read about it in newspapers and periodicals. Finally, as is usual for husbands and wives, we talked about it all.

Because I once prosecuted and later defended many people accused of serious crimes, including rape and sexual assault of every kind, my wife asked a very good question: What would have happened all those years ago if Dr. Blasey Ford had complained to the police? Without the slightest hesitation, I said, “Nothing.” After further reflection, my answer stands. My experience taught me that police and prosecutors are always looking for some decisive, controlling and irrefutable fact that will prove beyond a reasonable doubt a crime has occurred. ‘Back in the day’, if there was no visible evidence of physical injury, most rape cases were rejected. All rape cases involving persons who knew each other were viewed skeptically. If that was the attitude about rape cases, and it was, you can guess what would have happened to a complaint made by a teenager to the effect that she had been at an underage drinking party and had been held down on a bed by a drunk teenager, a hand held forcibly over her mouth, and assaulted, but not raped. I’m sure that the police would have politely listened and taken the report, but I’m equally sure nothing would have come of it. The police and prosecutors would have said it’s not enough to get a conviction. To themselves in private, they would be saying, “It’s just a bunch of drunk kids.” As shown by the vitriolic accusations made against Dr. Blasey Ford, not much has changed.

Viewed from the standpoint of Dr. Blasey Ford at that time in her life, I can easily understand why she didn’t make a formal complaint. If she had complained publicly, she would be accusing a well known and well liked young man of assaulting her while he was drunk at a drinking party for highschool kids at someone else’s home without having a visible injury or a witness to back her up. There is also every reason to believe that the now involuntarily famous Mark Judge, the witness, would have defended Brett Kavanaugh and himself even more vigorously then than he is now. Again, from her standpoint at the time, it is likely she thought she would be condemned and socially ostracized by her peers for ruining the life of one of their group and she may have thought she would be blamed for what happened or in trouble herself for even being there. No teenager is likely to speak out in those circumstances because the risk and cost is just too high.

What we now know is that a very high percentage of rapes and sexual assaults are committed by persons who know their victims and we know that evidence of actual physical force is not always present. We also know that most rapes and sexual assaults go unreported, probably for some of the same reasons Dr. Blasey Ford chose not to report the assault against her. Finally, we know that the dark side of human nature that wants to blame the victim is still very much alive and well. We are all more than willing to say something like this would never happen to us or that we would do something differently.

To me, the interesting thing is that Dr. Blasey Ford was such a compelling witness that even the most skeptical and partisan of the politicians now agree that “something happened”, but they will never agree that what happened involved Brett Kavanaugh, so they are left with the argument that she must somehow be mistaken as to whom was involved. I have to disagree on that. Dr. Blasey Ford knew both boys in the room. They were not strangers. I also found her testimony about the details she remembered to be convincing. My experience in talking with victims, asking questions of them at trial and even cross examining them in trials, is that they often remember small, inconsequential details that would never occur to anyone as being important or as being important to fabricate. Eyewitness identification can be faulty, but the circumstances surrounding this event do not readily lend themselves to that argument. I found it very believable she would remember the laughter of Kavanaugh as he covered her mouth and she struggled against him. Being laughed at while you are being terrorized will leave a lasting memory. For an interesting scientific analysis of the language of deception, read the work of Dr. James W. Pennebaker of the University of Texas, who studies this topic.

When it gets right down to it, it is hard to accept a point of view that admits Dr. Blasey Ford is a truth teller on everything but the fact that it was Brett Kavanaugh who did this.

The idea that it is absolutely essential to confirm Brett Kavanaugh and no one else is a mistake. There are many, many qualified people that could be confirmed more easily and with less political damage to both sides.

Image and video property of CBS News

On Wednesday, October 3, 2018, Donald Trump attended a campaign rally in Mississippi. During that rally he mocked and belittled Dr. Ford and posed himself and Brett Kavanaugh as victims. This was vile and despicable. However, it did “rally his base” and it had the added benefit of diverting the public’s attention away from the 8 or 9 page, 15,000 word bombshell story in the New York Times which explained in great deal how Trump and his family defrauded federal and state tax authorities out of millions and millions in taxes and exposed Trump’s lies about how he got his wealth.

CREDITS:

Ford / Kavanaugh image is property of Jim Bourg and Saul Loeb, distributed by the Associated Press

Trump image and video is property of CBS News.

While You Were Sleeping

Photo: Smiley N. Pool, Staff / Houston Chronicle

You know the old saying: ‘If you snooze you lose.’ That applies nowhere more than the United States Congress.

Recall the catastrophic fertilizer explosion in West, Texas that killed 15, injured 200, and destroyed a sizable chunk of the town? In the aftermath, it was discovered that Texas had few, if any, safety rules and regulations regarding the storage of explosive agricultural chemicals. A Dallas Morning News investigation in 2013 found 70 sites like the facility in West.

Despite the catastrophe and the obvious need to do something, Texas did nothing. On the other hand, President Obama ordered an overhaul of chemical safety rules and OSHA (The Occupational Safety and Health Administration) did issue “guidance” intended to extend OSHA regulations and inspections to more facilities. The fertilizer industry challenged the guidelines in court, and won. However, the industry was not satisfied with its legal victory.

Enter the lobbyists.

Tucked away in the bowels of the enormous Farm Bill being considered by Congress is a provision that would permanently deprive OSHA of the right to regulate and conduct inspections of facilities like West.

The West facility had not been inspected by OSHA in ten years. There are, of course, reasons, justifications and rationalizations for that failure such as budget constraints, a shortage of personnel, etc., but this Farm Bill would deprive OSHA of even the right to conduct an inspection.

Jordan Barab, a former OSHA deputy assistant secretary, said: “If this is successful, it would be the first case of an industry saying, ‘We understand this is important, but we want to be exempted.’ This really is a precedent you don’t want to set.”

Lobbyists never sleep.

For more, see the Houston Chronicle article by Bill Lambrecht and Matt Dempsey of 9/27/18.

Photo credit: Smiley N. Pool, Staff / Houston Chronicle

UPDATES:

https://www.rollcall.com/news/politics/farm-law-new-bill

 https://thehill.com/homenews/house/409368-congress-allows-farm-bill-to-lapse-before-reauthorization-deadline

Who Do They Think They’re Foolin’?

The Republicans on the Senate Judiciary Committee were deeply concerned about how it would look for an all-male panel of Republicans to cross-examine a woman who alleges she was sexually mauled by Supreme Court nominee Brett Kavanaugh. Normally, politicians jump at the chance to be on television, but not this time. In a vain and misguided attempt to give the appearance of sensitivity and sincerity, they hired a female prosecutor from Arizona with extensive experience in sex crime prosecution to do their dirty work for them. They must have forgotten that it might not look so good for a professional prosecutor to be, in effect, prosecuting a victim, even if that prosecutor is a woman.

It had the appearance of a bullfight. Long before the matador first fights and then kills the bull with a dramatic thrust of his sword, assistants tire and break down the bull with barbed sticks (banderillas) placed by banderillos and sharp lances thrust into the bull’s heavily muscled neck by mounted picadores. If this was not done, the bull would not be manageable. Make no mistake, they did intend to kill this lady, but they wanted someone else to break her down.

As it turned out, if the intent was to discredit and break down the accuser, the lady prosecutor was ineffective and so were the Senators. By the end of Thursday and into Friday, all the Senators were back to making passionate speeches with a heavy dose of righteous indignation and threats.

As of late Friday, it was reported that retiring Senator Jeff Flake of Arizona was brave enough to call for an FBI investigation and a delay on the final vote. Was this a public relations ploy or real bravery? Who knows?

Did it have to be this way? I think not.

Let’s imagine for a moment that Brett Kavanaugh had not been nominated and that Trump had a sincere desire to nominate someone who was both qualified and had a good chance of being confirmed without a brawl. What would our hypothetical nominee look like?

I would like to think that our hypothetical nominee would have these characteristics:

Humble to average family financial circumstances; attended public schools, a public university and a public law school; actually practiced law for a considerable number of years with experience representing ordinary people rather than the Fortune 500; actual jury trial experience as a lawyer; considerable experience as a trial judge; some experience as an appellate judge; no history of political activism in Washington; and, no membership in nor allegiance to any group that advocates the idea that the law should be used to advance some partisan cause or objective. I strongly believe that our hypothetical nominee would be easily confirmed and that such a person would provide needed balance to the Court.

On the other hand, let’s look at Kavanaugh. Affluent family background; father was a lobbyist, his mother is a judge; attended private schools and an elite boys’ prep school; attended Yale and Yale law school; clerked for Republican federal judges; worked for special prosecutor Ken Starr on 2 occasions; worked very briefly for the firm of Kirkland & Ellis, one of the largest firms in the world; never tried a case to a jury; served in various capacities in the Bush Administration; was appointed by George Bush to a federal appellate bench, but his confirmation was controversial and was held up 3 years; has never actually practiced law in the traditional sense; has never been a trial judge; has been a Republican operative for years; has been groomed by and is endorsed by the Federalist Society; and, has written legal opinions, articles and given speeches that identify him with points of view that are far to the right of center.

If you had a check list for a nominee that was bound to be controversial, Kavanaugh’s background checks every box. Even his earlier nomination to a federal appellate court was highly controversial. It is not reasonable to believe the Trump Administration did not know what was coming. This was intentional , totally foreseeable and it served Trump’s purpose.

Republicans will say that Kavanaugh’s credentials make no difference, that Democrats would oppose whomever was nominated. That might be true, but if they opposed my hypothetical nominee they would look foolish, mean, vindictive and not acting in the best interest of the country.

One last thing. I think it is commonly believed that the Trump base is at least partially populist in character. There is absolutely nothing in Kavanaugh’s elitist background that logically should appeal to the base other than his rightward tilt on abortion, religion, etc. If Trump really wanted to deliver a poison pill to the Democrats, he should have looked beyond the list prepared by the Federalist Society and nominated a ‘man of the people.’

Photo Credit: Freesearchgate.net / AFP / Getty Images

Remember When We Liked Science?

XXSTRINGERXX xxxxx / Reuters

On 9/28/18, it was revealed in news reports that the Environmental Protection Agency intends to dissolve its Office of the Science Advisor. This position’s duty is to advise the EPA Administrator on scientific research related to health and environmental regulations and to ensure that the highest quality science is integrated into the agency’s policies and decisions.

The EPA also placed the head of the Office of Children’s Health on administrative leave. The head in question, Dr. Ruth Etzel, is a pediatric epidemiologist who had pushed for more regulation of pollution. It is reported that she had clashed multiple times with Trump’s political appointees, who favor loosening pollution rules. The leave is not disciplinary and no other reasons were given.

For more about this, see the New York Times of 9/28/18.

The Trump Administration regularly brags about its rollback of “burdensome” and “overreaching” regulations. That’s a lot easier to do when you get rid of those pesky scientific facts that led to the regulations in the first place.

Photo Credit: XXSTRINGERXX xxxxx / Reuters

He Was Oh So Close and Then...

The carefully choreographed processional leading up to the confirmation of Brett Kavanaugh to the United States Supreme Court was going according to plan and then … it wasn’t. Allegations of sexual misconduct have arisen that will delay the coronation. One of the ladies accusing Kavanaugh has asked the FBI to investigate her claim before she testifies. I feel certain she reasonably fears that what happened to Anita Hill in the Clarence Thomas confirmation hearings will happen to her. If that is her fear, she’s not wrong. She has already been vilified and threatened and she hasn’t even testified. Her life will never be the same. I have to respect someone who is willing to walk directly into the line of fire when she knows it has no chance of changing the outcome.

The first reaction of Chuck Grassley, the Republican Chairman of the Judiciary Committee, was to go forward with a vote without even hearing the testimony. I suppose this shows us how important this confirmation is to him or how little he cares about even the appearance of fairness or how little credibility he intends to grant to the unheard accuser or... just how stupid or senile he is. Other Republicans, however, didn’t like the “optics” of not even hearing the testimony. Grassley changed his tune. There will be at least a show trial of sorts before Kavanaugh is voted favorably out of Committee and then confirmed by the Senate, all on a party-line vote.

The hiatus in the procession did give Senate Majority Leader, Mitch McConnell, the time and opportunity to accuse Senator Diane Feinstein of being sneaky and underhanded because she waited until the end of the hearing to reveal the accusation. This claim of foul play comes from the same man who refused to even grant a hearing to Justice Merrick Garland, who was nominated by President Obama 11 months before the end of President Obama’s term. Sometimes the hypocrisy of politicians is so bad you have to hold your nose.

The evangelical and socially conservative factions have weighed in on behalf of Kavanaugh. Speaking through leaders such as Ralph Reed, Tony Perkins, Franklin Graham and Robert Jeffress, they threaten not to turn out to vote for Republicans if Kavanaugh is not confirmed. No Republican is likely to ignore that threat. The alliance of the evangelicals and Trump is strange in the extreme. It is a marriage of convenience, but it will ultimately come at a cost, probably a high one.

Photo Credit: Researchgate.net & AFP/Getty Images

Oh What Tangled Webs We Weave...

The New York Times ran a story on 9/18/18 (“Lawyers Work at Untangling Risk to Trump”), which discusses at length the multitude of potential problems caused by having what many would say are “too many cooks in the kitchen”. Many lawyers have come and gone from Trump’s team and each of them has had his own strategy. Their strategies may or may not prove to be incompatible, but the Trump public relations strategy is to try to discredit and blame all of the lawyers that have left the team and position Trump as a victim of his own lawyers’ mistakes. This plan has the benefit of being able to take cheap shots at those who legally and ethically are prohibited from firing back. This seems unfair to the lawyers whose reputations are damaged, but the privilege pertaining to lawyer/ client communications is sacrosanct in our legal system.

The New York Times’ story has within it a key paragraph that is telling and teaches a lesson:

“What is more, it is not clear if Mr. Trump has given his lawyers a full account of some key events in which he has been involved as president or during his decades running the Trump Organization.”

 In other words, his lawyers have conceived and carried out strategies based upon, at best, partial information or, at worst, actual lies.

The age old wisdom that you must tell your lawyer all of the truth all of the time applies to Trump and to everyone else who engages a lawyer’s services. A lawyer simply cannot be effective unless he or she knows the whole truth. Lawyers acting upon lies and ignorance will often inadvertently do more harm than good.

The truth has a way of coming out eventually and, if it follows a lie, the harm is much worse than if the truth was told in the beginning. Trump has, thus far, escaped this maxim, but that will probably change.

Having represented so many people over the years, including those charged with heinous crimes, I can tell you that clients often don’t want to tell their lawyers the whole truth because they fear the lawyer will not represent them or will not put forth a good effort. This almost always backfires and hurts the client. If the client is harmed by a lawyer acting upon the assumption that the client is telling the truth, who is really to blame for the consequences?

There are also clients who want their lawyer to tell the “story” that they have concocted and they insist that the lawyer tell that story their way even if it is against the lawyer’s best judgment to do so. This type of client tends to believe that they are smarter than their own lawyer, smarter than the opponent and smarter than the legal system. This type of person views lawyers as mere tools to be used and manipulated in a game and, if the game is lost, to take the blame for the consequences. Textbook narcissism.

I think you can sense that Trump is a combination of these types. The latest evidence of this is Trump’s condemnation of the lady who has accused Brett Kavanaugh of sexual misconduct. Trump absurdly claimed her credibility was in doubt because, among other reasons, she was represented by lawyers and even suggested her lawyers should be investigated. Considering his relationship with his personal “fixer”, Michael Cohen and, before that, the infamous Roy Cohn, and the many, many legal scrapes he has been in through the years, it isn’t hard to figure out how he got that idea.

Photo Credit: Witwiccan

How Litigation Lending Affects You

Over the years companies have been created that specialize in lending money at extremely high, even unconscionably high, interest rates to people who are involved in personal injury or wrongful lawsuits and people who are awaiting the payment of money from the settlement of lawsuits. There are also companies who lend money to lawyers who need to borrow in order to fund high-cost litigation and there are companies that exist to buy structured settlements (annuity contracts) from people who have settled their claim in exchange for the payment of money which is to be paid out to them over a period of time.

Each of these business schemes can have a legitimate purpose. On the other hand, all of them can be misused and predatory.

First, the lending of money to people who have a potential claim or who are awaiting a settlement and need money now. It is obvious that a person who is seriously injured may not be able to work and may not be able to pay for needed medical care. Those who find themselves in that predicament are often desperate. A loan in these circumstances may be justifiable, but there are lenders who use the borrower’s desperation to their advantage. If you are in this situation, NEVER agree to a loan without first consulting your lawyer. Many of the companies making these loans charge exorbitant interest. Furthermore, many of these companies demand that your lawyer obligate himself to keep the company informed and to cooperate with them during the litigation and thereafter to protect their loan. Don’t allow dire need force you into a bad decision you will regret.

The second type of loan, loans to lawyers, is a transaction between a lawyer and a lender intended to enable a lawyer to fund the cost of litigation. In some situations, loans of this type are essential. In today’s world of complex litigation the costs can be enormous. This is especially true in class action cases, mass tort cases, and cases that are dependent upon evidence that can be obtained only from multiple expensive expert witnesses and cases that can be expected to go on for years. Many lawyers simply cannot finance these cases out of their own pockets. However, the cost of borrowing the litigation expenses is usually passed on to the client if the case is successful. Consequently, you should ask your lawyer at the very beginning whether he or she will be borrowing money to finance your case and, if so, whether you will be paying the interest on the loan.

Loans for litigation expenses can be misused and abused. I am aware of a well known firm in Houston that created its own loan company that exists solely for the purpose of loaning money to the firm in all of its cases. This is how this scheme works: Every time the firm incurs an expense of any kind in any amount, it is booked as a loan between the firm and the lending company created by the firm. At the end of the case, the firm passes the expenses and the interest on the “loan(s)” to the client. The result to the client is that the firm is being paid interest on all its expenses, even those expenses which most lawyers would consider to be routine firm overhead.

Image is property of J.D. Wentworth

The last type of financial transaction affecting litigation is the most predatory of all. This is the one wherein a company buys structured settlements from people who have already settled their cases. Let’s say that you have a serious injury and you file a lawsuit. The defendant you have sued later offers to settle with you by means of a “structured settlement”. This means that the defendant offers to buy you an annuity contract from an insurance company that will pay you specified amounts over a period of time. Structured settlements can be very advantageous because they have tax advantages and because their internal rate of return is often higher than you can achieve for yourself by investing the settlement money. The drawback is that you can’t get your hands on future payments until they are due. Structured settlements are often used to protect minors and young adults from the consequences of impetuous financial decisions. The next step is that companies such as J.D. Wentworth advertise their willingness to buy your structured settlement for cash paid now. What they don’t tell you is that they will pay you a steeply discounted price that may be pennies on the dollar. If you agree to the deal, they pay you cash, you sell to them your structured settlement (annuity contract), and they get paid all you would have received had you waited to be paid. I should add here that the difference between what they pay you and what they get is their profit and that it is enough to make them laugh all the way to the bank.

Never agree to sell a structured settlement without getting advice from your own lawyer. Your temporary needs, no matter how urgent and important they may seem, can almost always be met in some way far less drastic than virtually giving away your structured settlement.

Photo Credit: Pete Linforth

The Senate Judicial Confirmation Hearing

Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee in Washington on Sept. 6, 2018. (Alex Brandon/Associated Press)

After a raucous beginning, Judge Brett M. Kavanaugh, President Trump’s nominee to the United States Supreme court, got his chance to speak:

“A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”

He went on to say he would be “a neutral and impartial arbiter who favors no litigant or policy,” and that a judge “must be independent, not swayed by public pressure.”

You may rest assured that these simplistic, noncontroversial, aspirational words were honed by professional speech writers and that they have been tested through the years on focus groups. My impression was that Kavanaugh was giving a performance that he has been preparing for his entire life. He has been groomed for this moment by the conservative Federalist Society and there is not the slightest chance he will make a mistake. The same could be said of Justice Neil Gorsuch, who was confirmed before him. You are seeing the Republican/ Libertarian/ Conservative master plan for the judiciary unfold and it will have far reaching and long lasting consequences. I almost wish the Senate Judiciary Committee would spare us the sham hearing. They already know what is going to happen and so do we. As someone on television said recently, “losing elections has consequences,” and we are witnessing those consequences.

It is painful to watch politicians attempt to cross examine Kavanaugh. When they ask about his position on legal issues, he easily evades or bats away their questions by simply saying he can’t and shouldn’t answer hypothetical questions and/ or that it is improper for him to make a comment or commitment about a pending case or an issue that may come before the Court. By the time you eliminate all the important questions he says he can’t, shouldn’t or won’t answer, there isn’t much left to talk about. The politicians are way out of their depth and I suppose they know it. Maybe that is why they resort to reading prepared statements.

What would be interesting and insightful is for legal scholars to ask the questions, but I’m sure that isn’t allowed and, in any event, the politicians don’t want to surrender the limelight.

Since we know that Kavanaugh will be confirmed and that the Court will become even more predictably conservative, it is reasonable to presume the Court will rule to the right on all the hot-button social issues such as abortion, gun rights, voting rights, discrimination, speech, religion, etc., and that the Court will continue to favor big business over individuals.

Ironically, Trump’s populist base of support (presumably ordinary working class people) will probably be harmed by most of this Court’s rulings, which won’t be about social issues, but they don’t seem to know that. Perhaps this is due to their laser focus on the social issues that generate headlines or maybe it is because it is not immediately apparent to them how the meat and potatoes cases affect them.

For a very good analysis of the proper role of the Supreme Court, read the essay of David A. Kaplan, “What’s the Point of the Supreme Court?” in the New York Times of September 5, 2018.

For more about the Federalist Society and the role it now plays in shaping the judiciary, read the book “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, by Amanda Hollis-Brusky, or Ms. Hollis-Brusky’s 6/28/18 interview on NPR, and the book “Dark Money”, by Jane Mayer.

One last point. Kavanaugh is only 53 and has been a judge for 12 years. He attended Georgetown Preparatory School, then Yale University. He remained at Yale to attend Yale Law School. His legal practice was with the firm of Kirkland & Ellis, one of the largest, “white-shoe” law firms in the world. He has also served as a law clerk for federal judges, worked as White House Staff Secretary in the Bush Administration, and worked for Ken Starr during the Clinton investigation. This elitist pedigree has become somewhat of a template for serving in the federal judiciary. Wouldn’t it be nice to see someone appointed who attended public schools and state universities, represented individuals as a lawyer over many years, and had “paid his dues”?

Photo by: Alex Brandon/Associated Press

The Tragic State of Healthcare in Texas

Chris Tomlinson, the excellent business writer for the Houston Chronicle, wrote an interesting commentary on August 8, 2018 concerning the overuse of hospital emergency rooms to treat patients presenting with nonemergency medical needs. According to Tomlinson, who cites the New England Health Institute, unnecessary ER visits cost Americans more than $38 billion a year. In Texas, there are 49 ER visits per 100 people. In 1992, the national average was 35 visits per 100, so the trend is not good.

Tomlinson’s point, and it’s a good one, is that ER care is by far the most expensive care a patient can receive and, in the end, we all pay for this care in the form of higher insurance rates and taxes. There is also the hidden cost of people with easily treatable chronic conditions being treated only when their symptoms finally become bad enough to go to the ER, and then it is often too late.  

Tomlinson is criticizing people for over utilizing ER care, but I believe the problem is far more complex than people simply making a bad decision to go to the ER for their smallest medical problems. After all, who in their right mind would willingly go to an ER to sit in line, maybe for hours, and be treated by a doctor they don’t know, if they had options?

How did we get to this point? Here are a few factors to consider.

Sam Houston State University is attempting to create a medical school intended to educate primary care doctors who will practice in underserved areas of Texas, particularly rural areas. Texas is 46th nationally in the ratio of doctors to patients. There are many, many Texas counties with no doctors and many more with only one or two doctors. Small, rural hospitals are a thing of the past. While it is doubtful that Sam Houston State University will get a medical school, there is no doubt that Texans need much better access to routine medical care.

Texas has chosen not to avail itself of the opportunity to expand Medicaid even though the federal government will pay most of the cost and even though every major healthcare group in Texas begged the legislature to do this. This was purely a political choice aimed at undermining the Affordable Care Act. The result is a much larger population of patients with no insurance and no ability to pay.

Texas has one of the highest rates of uninsured citizens in the country. While Texas does have low unemployment, fewer and fewer jobs come with health insurance.

I can’t recall calling a doctor’s office in the last 10 years without being told by an automated message to go to the ER if I have a medical problem that needs immediate attention and it is not within that doctor’s normal business hours. If you call in normal hours, it may be weeks before you can see a doctor. If you are a new patient, you may not be seen at all. It is reasonable to assume a fair number of people do go to the ER and that the public has become educated to the fact doctors don’t usually treat acute medical problems in their offices.

It is unquestionably true that most doctors don’t want to see uninsured patients, Medicaid patients, or CHIPS patients and some don’t want to see Medicare patients.

There is the problem of the Republican party’s unending attempts to repeal and/ or systematically destroy the Affordable Care Act without a viable replacement. President Trump has made no secret that he intends to do everything within his power to make the Affordable Care Act fail. When people can’t get insurance coverage, they go to the ER because they can’t be turned away.

Back in the late 1990s and early 2000s, Republican political strategists, insurance companies, drug companies and lobbyists working for healthcare groups believed the time was ripe to advance a national agenda of “tort reform” in the area of healthcare. They were unable to achieve their goal on a national level, but they were successful in Texas because George Bush was Governor and the Legislature was controlled by Republicans. Because this plan involved amending the Texas Constitution, all that remained to be done was to convince the voting public. Access to healthcare was one of the primary selling points. It was said then that Texas, particularly rural Texas and poor Texans, did not have adequate access to care. The argument they made was that medical malpractice laws had to be changed in order to attract doctors to Texas and to keep our doctors from “fleeing the state”. They also said the law had to change to keep open the doors of our hospitals, particularly rural hospitals. On a close vote, the constitutional amendment passed and sweeping changes in healthcare liability law were made by the Legislature.

What happened next? Did changing the law make care more accessible and affordable? Of course not. Patients traded their legal rights for nothing. Rural areas are still underserved. We still have a serious shortage of doctors. The cost of medical care and medical insurance is higher than ever and unaffordable to a high percentage of Texans.

The crime of the situation is that cynical politicians, special interest groups, lobbyists  and political strategists all knew the truth and made a conscious decision not to tell it.

The fact of the matter is that doctors choose to practice where they do based on money, quality of life, and easy access to first class hospitals and other specialized medical providers. It is also true that hospitals, out of economic necessity, must be where the patients are. All of this adds up to the urban areas having more and the rural areas having less or none at all.

The inevitable result of all these problems is that many patients go to the ER because they don’t have a viable alternative. The financial and political evolution of the healthcare system has pushed them in the door of the ER. As everyone without a political or financial agenda will tell you, it would be far cheaper to fix the problem of access to primary care than to continue to pay for the truly broken system we have. Doing nothing is expensive. 

For so long as a sizable share of the voting public believes access to basic healthcare is a privilege rather than a right, this problem will get worse.

 Updated Articles for Sam Houston:  https://www.texastribune.org/2018/08/14/state-board-approves-new-medical-school-sam-houston-state-university/

Photo Credit: Paul Brennan 

Bad Judicial Conduct

If you are following the prosecution of Paul Manafort in federal court, you will have noticed that the federal trial judge, T.S. Ellis III, has routinely inserted himself into the proceedings by his many criticisms, comments, threats and tantrums. The judge’s conduct, of which he seems proud, has been such that the New York Times believed it deserved a front page story on August 9, 2018.

The conduct of another federal judge, Richard Leon, who heard the government’s case against the AT&T acquisition of Time Warner, also justified an article in The Wall Street Journal.

In both instances, the judges berated the lawyers, threatened the lawyers and made comments that could lead to legitimate questions regarding their impartiality.

Are there limits on the conduct of trial judges?

The answer is “yes”, but they are fairly vague. For example, the Texas Code of Judicial Conduct says “A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others…”

What that means to one person may not mean the same thing to another. It is also true that judges should perform their duties without bias and prejudice and should not manifest their bias and prejudice by words or conduct. But, again, it is often hard to capture on the official written record of a trial the attitude of the trial judge.

Can the conduct, demeanor and attitude of a trial judge affect the outcome of a trial? Definitely. Jurors are not stupid. They watch every move, look for cues and listen to every word. They assume the trial judge knows the law better than anyone else in the courtroom and that he or she knows who should win. A trial judge can make or break a case not just by their rulings, but also by their words and attitude. If a trial judge is hostile to a litigant or a lawyer, it is likely that a jury will pick up on that attitude and may adopt it as their own.

Most of the time bad judicial behavior is not punished. This is more true in the federal system than in the state system. As Judge Ellis said it himself, “I am a Caesar in my own Rome.”

Photo by: Succo

Feeding the Hungry

Today is the Brazos Valley Food Bank’s annual Feast of Caring. I hope it is a big success and encourage everyone to attend and give. If you cannot go, please make a contribution when you next consider your charitable giving for 2018. In a community such as ours that appears to be so prosperous, you wouldn’t think that food insecurity is a big problem, but looks are deceiving. The food Bank serves thousands of people in the Brazos Valley and is a very good steward of all that it receives.

There were 44, 640 food insecure people in Brazos County, a rate of about 21.3 percent, in 2016.

The need is particularly high in the summer months because children who are provided food at school are at home.

Please be generous.

Bias Against Muslims as a Factor in Litigation

Since 9/11, there has been an awareness among lawyers of an anti-Muslim bias and prejudice that potentially affects the fairness of trials. We are now learning this goes beyond Muslims and extends to Arabs. According to a 2015 Gallup poll, 43% of all Americans admit to holding prejudice against Muslims and 39% express an unfavorable view of Arabs. Another survey states that 47% believe Islam and American values are in conflict. There is some research to the effect that prejudice against Arab Americans is greater than that held against Hispanic Americans, Asian Americans or African Americans. Considering the deluge of overheated political discourse of today about immigration and terrorism, I suspect the degree of bias is greater today than ever before and growing. It is also significant that these numbers reflect explicit bias and prejudice that is self-reported. Most people are reluctant to admit publically that they harbor bias or prejudice and studies prove that many people are unaware that they are biased and prejudiced.

Our judicial system cannot function properly if race, religion, ethnicity, social status, or nationality play an unspoken role in the decision making process. Nevertheless, one would have to be very naive to believe that these issues don't affect the quality of justice in cases involving litigants and witnesses who are Muslin, Arabs, or for that matter any minority.

What can be done short of the unrealistic goal of changing hearts and minds on a wholesale basis?

Insofar as I can see, there is nothing that can be done other than for judges and lawyers to address this issue head-on during jury selection. By this I mean that lawyers need to thoroughly examine potential jurors regarding anti-Muslim, anti-Arab bias, and trial judges need to allow lawyers plenty of time and latitude in doing so. Due to the fact that people don=t want to publically admit racial, ethnic or religious bias, some of this questioning may have to be done in a private conference between the judge, the lawyers and the potential juror at the bench.  Instructions from a judge to jurors to not let bias and prejudice affect their verdict are worthless. As the old saying goes, telling jurors to disregard something is like throwing a skunk in the jury box and telling them not to smell it. It just won’t and can’t work.

Photo Credit: Ross Caines