The Very First Contract

     Mornings are not my favorite part of the day.  They were especially difficult when, in addition to trying to get to work or court, I had to herd three grumpy teenagers into the car so that I could get them to school on time.  One of my sons had developed a slightly rebellious streak that seemed to be getting worse daily.  Perhaps it had something to do with his deepening voice and sprouting facial hair. 

    On the way to school one typically miserable morning, he said, “You know, Mom, I’m bigger than you, stronger than you, and faster than you.  I’m sitting here wondering why I have to do what you say.”  I reached into my purse and pulled out my checkbook.  “The reason, son, is that the last time I checked, you were unemployed.”  He grinned and replied, “You’ve got a point there, Mom.”  He understood that in return for me providing care and support, he had an obligation to comply with house rules.

     I thought about that morning recently when reading about disgruntled voters who are threatening to kill our President.  Some claim that his election is the end of our democracy.  To save us from the “madness”, they have decided to resort to violence.  Like my teenaged son, they’ve forgotten about their obligation to comply with the very first contract.

     William Blackstone was an eighteenth century legal scholar who is still respected for his knowledge and wisdom.  He writes that the “original contract of society” is the foundation of all law.  This unwritten contract requires the community to “guard the rights of each individual."  In return for this protection, "each individual should submit to the laws of the community.”[1]

     From the beginning of time, societies have devised codes of conduct.  Our laws are the culmination of thousands of years’ experience in determining the best way to govern ourselves.  Our democracy is not perfect but our laws provide ways, such as voting and nonviolent protests, to address those problems.  Therein lies our government’s genius and staying power.  Therein lies its right to our respect and obedience. 

     For help with my parenting problems all those years ago, I consulted a neurologist about the change in my children.  Either I had suddenly become a bad mother or all three of them were developing personality issues.  I had gone from worrying about how I was going to pay for their graduate school tuition to praying that the mischief would never amount to more than a few misdemeanors.

     I was relieved but surprised when the doctor told me that it wasn’t my fault.  The kids were in fact flipping out.  He said that all teenagers’ brains are structurally unable to make reasonable choices.  The best I could do was to help them “keep it between the ditches” until their brains finished developing.  He assured me that once that happened, I would see the amazing people they were destined to become. 

     Wearily, I asked how long this development would take. He responded that by the time they reached the age of 23, all should be well.  I didn’t know how I would get through the next eight years, but at least there was a light at the end of the troubles.

     I’m happy to say that the doctor was right.  We experienced challenging times during those eight years and we all learned important lessons from them.  But now, I am once again a very proud mom of all three of my children.  They have each grown up to be more than I ever hoped for.

     It may be eight years before the current political turmoil settles down.  Like my teenagers, our government may be experiencing growing pains.  But history teaches that our government can survive great challenges.  Our nation has endured and learned from a bloody civil war, two World Wars, deadly epidemics, the turbulent sixties, and numerous economic depressions.  It can surely handle the upcoming challenges. We just have to “keep it between the ditches” and honor our fundamental contract.  

---

[1] Blackstone’s Commentaries on the Law, page 29 (1941).

The "Professional Plaintiff"

     As I’ve been a lawyer for over forty years, it was inevitable that I’d eventually run into a “professional plaintiff.”  For those of you who haven’t had the pleasure, let me introduce you to one such man - Cory Groshek who operated primarily out of Wisconsin.  Mr. Groshek made his living applying for jobs.  It wasn’t that he wanted the jobs.  He was trying to catch employers who ran a credit check on him without complying with the federal laws on doing so.  Once an employer fell into his trap, he would threaten the employer with a class action lawsuit.  In one year, he collected $230,000.  Not bad pay for filling out 562 job applications.  A couple more years and he’d be a millionaire.

     Everything was going really well for Groshek until he tried to bully Time Warner Cable.  He applied for a job and signed the Time Warner form authorizing the company to check his credit.  Once he had proof that they had run the credit check, he began with the threats.  His initial demand was allegedly for $5 million.  When Time Warner refused to pay, he filed suit.  You may wonder what Time Warner did that violated federal law.  After all, the company did get written consent to check Groshek’s credit as required by the Fair Credit Reporting Act.  Groshek argued that their consent form contained irrelevant information.

     In May of 2016, the U.S. Supreme Court ruled that because Groshek had not been damaged by the credit check, he had no grounds to file suit.  Groshek had no damages because after running the credit check, Time Warner offered him a job.  Groshek probably wasn’t surprised by the job offer.  As he was making money hand over fist at that time, I suspect that he had a great credit score.

     Even lovely Chapel Hill, North Carolina, has seen  professional plaintiffs at work.  One lady in question was born with cerebral palsy and is wheelchair bound.  As of 2011, she had filed 290 lawsuits against various businesses alleging that they were not in compliance with the Americans with Disabilities Act.  This plaintiff lives in Florida but visited a Chapel Hill shopping center on three occasions on her way to see her attorney in Durham.  She claimed, among other things, that the disabled parking spaces “do not have clear and level access aisles”; that signs were “not mounted at sufficient heights”; and that curb ramps contained “excessive slopes.”  While she argued that these “excessive barriers” “endangered her safety,” she did not allege that she was denied access to the stores or that she suffered any physical injuries.  Indeed, she wanted to “visit Defendant’s property once again” because it “has an attractive selection of goods and services.”  The federal court tossed the lawsuit.  It ruled that the plaintiff had not suffered any injury and therefore had no case.      

     Although the plaintiffs lost the above two cases, there are thousands of claims that professional plaintiffs have successfully pursued.  For that reason, it was discouraging to see that in July of 2016, the federal government authorized patients to sue health care providers who do not provide them with federally mandated interpreter services.  During the months that followed, I began to receive telephone calls from clients who had been challenged by patients demanding interpreters.  As I had not received any such calls in the first 40 years of my practice, I cannot help but think that my clients were dealing with professional plaintiffs who were looking to make a buck using the new regulations.  Luckily, those calls have died down and as far as I know no one has been sued. 

     Professional plaintiffs tie up the court system and waste jurors’ time all at the expense of the taxpayer.  They also run up exorbitant attorney fees and court costs for hapless defendants.  When those defendants are health care providers, those expenses will be passed on to all of us in the form of higher health care costs.  Hopefully judges will begin to close the courts to these plaintiffs and order them to pay their defendants’ expenses and sanctions for filing frivolous cases.  Perhaps then, the courts can get back to the business of helping citizens who actually need access to the judicial system.  

Coming In Loud And Clear

When I was a little girl, my family attended an old Methodist Church in downtown Fayetteville, NC.  The pews were hard and I was skinny.  An hour seemed an eternity.  The sermons addressed intricacies of Christian theology that were of no concern to me.  Predictably, I squirmed, whispered, giggled, and was generally a nuisance. 

Dad was a senior staff member at the local Sears store and often worked well over 50 hours a week.  By the weekend, he was exhausted.  At church, he always sat at the end of the pew and I sat beside him.  It was my job to make sure that when he fell asleep during the service, he was properly elbowed so that he wouldn’t snore or fall out of the pew.  I often considered letting Dad fall.  After all, it would liven up things a bit and the look on Dad’s face when he hit the carpet would be really funny.  But in the end, I always decided that it was much more entertaining to poke Dad’s ribs and watch him jump. 

Dad, raised in the Baptist faith, often complained that the Methodist service had too much standing and sitting.  Apparently, the Baptists let you settle in comfortably for the duration of the sermon.  Eventually tired of my constant rib poking, Dad started leaving church after Sunday School to go play golf.  While I missed him, Mother explained that he needed some time to himself.

One Sunday in the middle of the sermon, an unexpected storm broke out.  The minister had to speak loudly over the thunder claps.  The organist pounded out every hymn.  No one slept through that service.

Dad was already home when we got there.  He was pacing around and was very upset.  He told us that he was walking back to the club house when the storm started up.  As he hurried past a huge oak tree, lightning struck it.  The lightning hit so close that it burned Dad’s pants and singed his backside.   He was in quite a bit of pain.

I knew how he felt.  After all, I had gotten my share of spankings in the same general location where he had been burned.  I figured that God was sending him a message about skipping church.  I sure hoped God had no messages for me.  Years later, I learned that a Judge who decides to send you message can also be dangerous.

I had been stuck in non-support court for hours waiting for my client’s case to be called.  I had earlier irritated the judge by successfully appealing an order he had given in a child custody case.  Now I was paying the price as my case would be the last one heard that day.

I watched as one man after the other was called before the judge.  Each gave a lame excuse for not paying court ordered child support and each was appropriately chastised and punished.  Things proceeded quietly until one man approached the bench with somewhat of a swagger.  I could tell that the judge recognized this defendant and that he was extremely angry with him.  “Mr. Smith, I am getting sick and tired of seeing you in my court!” the judge thundered.  “And it looks like this case involves yet another child.  So, this is the fourth child you have fathered!  I can’t even support three children.  What gives you the right to continue to bring children into this world and abandon them?”

As the defendant shot the judge a defiant look, the judge began yelling at him. “You think this is funny!  Well, I tell you what’s funny.  I’m going to put an end to this.  I’m sending you and all these other men a message that’s LOUD AND CLEAR.  I’m ordering the sheriff to take you out right now and throw you in a cell.  And you are NEVER getting out!  And just in case you think I can’t do that, there’s an appellate lawyer sitting right here and she’s going to tell me how to draft an order to keep you locked up forever!”  At that the judge pointed at me.  The defendant took one look at me and bolted for the door, knocking his attorney to the ground.  The 62-year-old bailiff took off after him, but as far as I know the defendant was never found.

Both the judge and the Lord were good enough to give warnings before using the ultimate weapon at their command.  As for Dad, having gotten a holy kick in the pants, he never again skipped church to play golf.  As for me, I learned that there’s just so far that you can push even the best of judges.  When you go too far, lightning is bound to strike.

The Badge

     Years ago, I read the story of a young man from Orem, Utah, who called the police to report the theft of a quarter pound of marijuana.  Responding to the man’s call, the officers did a thorough search of his home, finding more drugs.  When they eventually caught the thief, they asked the “victim” to come to the station to see if he could identify the weed that the cops found on the defendant.  After he identified the weed as his, the police arrested him, too.  At the time, I remember thinking that the young man was really stupid.  Little did I know that I would one day find myself in a similar situation.

     I had been overjoyed to arrive home safely after a long drive from Atlanta.  However, when I approached the front door, I could hear a siren and see that the burglar alarm was flashing.  Someone had broken into the house.   Law enforcement was on the way and my alarm box instructed me not to enter the house. 

     Hoping that this was a false alarm, I decided to look around outside to see whether I could find any evidence of a break-in.  I soon discovered that the crook had kicked in a bathroom window.  Also, the back door to the house was wide open.

      I went back to my car and waited for the cavalry to arrive. About fifteen minutes later, two of Orange County’s finest showed up.  They instructed me to stay in my car while they “secured the premises.”        

      It seemed like hours before they came back outside.  They looked angry and told me that there was something they needed to ask me about.  They led me to the closet in my room.  “What exactly is this?” demanded the officer in charge.  He held out a woman’s police uniform.  I saw that I had forgotten to take off the shiny badge after I had last worn it.  

      After a moment’s confusion, I realized that these guys had found their criminal.  It was me!  They were going to arrest me for impersonating a police officer!  I tried to recall the exact language of N.C. General Statute 14-277.   I remembered that it prohibits “displaying a badge” that is designed to identify you as a law-enforcement officer.  Here we all stood looking at a shiny badge that identified me as “POLICE.”  Case closed.

     I had a good reason for owning that outfit.  Earlier that summer, I had been in a regional amateur ballroom dance competition. My routine involved me pretending to be a cop as my partner and I danced to Elvis singing “Jailhouse Rock.”  It had been a big hit with the crowd in part because the competition was in Memphis. 

     Initially, the deputies weren’t buying my dance story.  Then, I pointed out that the badge didn’t reference any particular police force.  Also, the fabric of the “uniform” was flimsy and clearly not regulation.  It had no pockets, no belt loops, no name tag and no buttons.  It zipped up the front.  No self-respecting police woman would be seen in such an outfit.

      In the end, the deputies probably realized that my claim to have worn the outfit at a dance competition was the only evidence they had of my “displaying” the badge.  That probably wasn’t going to justify any charges they could file.  As they stormed off, I was relieved that I didn’t have to play the tape of the dance routine for them.  Although we scored well with the judges, I didn’t think these guys were into ballroom dancing.

     My nerves were shot by the time the ordeal was over.  I figured that being arrested for impersonating a police officer would attract the attention of the State Bar.  If I escaped disbarment, my colleagues would have a great time sneaking up behind me in court yelling, “Stick ‘em up!”

      After the break-in, I’m not so quick to judge other people.  Many of us are conditioned to call law enforcement when we have a problem.  But like the fellow from Orem, I assure you that I won’t be doing that again any time soon. I’ve also packed up that silly uniform and hidden it in the attic.  I’ve decided that I’ll dress up as a penguin for our next competition.  We can do a tap routine to Happy Feet©!    

    

Hey, Madonna - No Worries!

Newt Gingrich wants Madonna arrested for her comments at the recent Women’s March on Washington, D.C.  You may remember that she said, “I’ve thought an awful lot about blowing up the White House.”  Is it a crime to think about breaking the law?

     The answer lies in the ancient legal doctrine that “no one is punishable for his thoughts.”  An illegal thought is a crime only when it results in an illegal act.  One court noted, “As we cannot look into the mind to see the intent, it must, of necessity, be inferred from the nature of the act done.”[1] Without a criminal act, there is no crime.

     More recently, the 7^th Circuit U.S. Court of Appeals called the doctrine a cornerstone of American law.  The Court wrote, “Perhaps the Victorian legal scholar James Fitzjames Stephen best explained this basic limit on government power: ‘If it were not so restricted it would be utterly intolerable; all mankind would be criminals, and most of their lives would be passed trying and punishing each other for offenses which could never be proved.’"[2]

     It is true, however, that Madonna did more than think an evil thought.  She publicly confessed to having had an evil thought.  Could her words be construed as inciting riot?    

     You may recall last year when an elderly man sucker-punched a protester at a Trump rally in Cumberland County, North Carolina.  Trump seemed to be encouraging more violence when he said that he was looking into paying the man’s legal fees.  In response, the long-time sheriff of Cumberland County, “Moose" Butler, announced that he was looking into arresting Donald Trump for inciting to riot. 

     Having grown up in Cumberland County and knowing Sheriff Butler’s reputation, I can tell you that things would have ended badly for Mr. Trump had the sheriff’s legal team not intervened.  They advised the sheriff that Trump had not violated the law.  Just as it’s not illegal to have an evil thought, it’s not illegal to talk about that thought.

     In 1959, our State’s highest court described the type of conduct that would constitute inciting to riot.  The sheriff of Robeson County had arrested James Cole and others in connection with a KKK rally near Maxton, North Carolina.  Cole and his armed men came to the rally preaching “racial hatred.”  They had earlier burned crosses in the area.  Cole publicly stated that he wanted to “scare up” the “half-breeds” in the county. 

     Our Supreme Court ruled that, “There can be no justification for the defendants and their associates to go to the rally . . . armed with rifles, shotguns, pistols, and other weapons . . . if their intent and purposes were legitimate and peaceful. . . Moreover, such conduct within itself would . . .  cause a breach of the peace in any community.” It upheld the defendants' arrest.

      Unlike the KKK rally, there were no reports of participants bringing weapons or preaching racial hatred at the Women’s March where Madonna spoke.  No one encouraged the crowd to commit violence and no one was “sucker-punched.”  In fact, despite a crowd numbering several hundred thousand, police made no arrests.

     So, Madonna, we know you have a “Rebel Heart” and a “Tale to Tell”.  And I don’t mean to “Preach”, but I think you can rest assured that in this country you’re still free to “Express Yourself.”

---

[1] McDermott v. People, 5 Parker, Cr. R. 102.

[2] Doe v. Lafayette, 334 F.3^rd 606 (7^th Cir. 2003) quoting James Fitzjames Stephen, A History of the Criminal Law of England 78 (1883).[2].

          

An Expensive Lesson

   

     An attorney friend referred “Betsy” to me, urging me to help the poor unfortunate lady.  Betsy had uncovered evidence of her supervisor’s illegal activities.  Getting fired was Betsy’s reward for reporting this to her employer.   After reviewing the evidence, I agreed to represent her and we were off to the races.  Unfortunately, I soon discovered that there were two sides to this story.

     I noticed that my client never held a job for very long.  Further research disclosed that she’d filed suits against landlords, grocery stores, neighbors, former employers, ex-husbands, her health care providers, former attorneys, and even her church.  I was representing a “serial plaintiff.”  And like her other victims, I lost money in the process.

     The case taught me the hard way how important it is to thoroughly research the background of a potential client BEFORE taking on his or her case.  In my work with health care providers, I’ve also found that it is important to check out potential employees and patients.

     A doctor I represent had interviewed several candidates to work as his new billing clerk.  He decided to give one of the applicants a “working interview.”  After she had been on the job a few days, he called me because he was very unhappy with her work performance.  He wanted to know how he should terminate the relationship. 

     The results of the lady’s background check nearly sent me to the hospital.  She had a long criminal record that included time in jail for aggravated assault and theft.  We needed to immediately let her go.  Fortunately, she had not had a chance to steal from us or attack any of our patients when we relieved her of her duties.  We were equally lucky that she did not file an unemployment claim. 

     Another clinic I work for called me about a patient who had groped one of its nurses. The administrator wanted my help in dismissing the patient from the practice.  After reviewing the report of the assault, statement of a witness, and the patient’s chart, I agreed that we should dismiss the patient.  I drafted a letter telling him that because of his actions, we were banning him from the clinic.  From the chart, I knew that the patient was married.  Not wanting to stir things up with his wife, I hesitated sending the letter to his home.  Unfortunately, our records merely listed his employment as “retired.”  Imagine my joy when my research disclosed that he was a retired attorney who had specialized in litigation.

     It is simple and inexpensive to obtain necessary background information.  Google™, LinkedIn™, and Facebook™ searches are a great start.  There are also numerous companies that provide thorough background information for a reasonable fee.  Health care providers can easily obtain information from their patients on “Welcome to the Practice” forms. 

     Before conducting a job interview or a background check on potential employees, employers must comply with numerous laws governing hiring practices.  These laws prohibit employers from asking questions that might constitute illegal discrimination.  They also require consent of the applicant to certain background checks.  I have found that applicants rarely object to the background checks and that the information gained is well worth the extra effort.

     Please take the time to learn about your patients, potential employees, and clients.  The information may protect you from making bad choices regarding these relationships.  Equally important, the information will help you understand those people and improve the quality of your care and relationships with them.  It can be a positive choice for everyone involved.   

    

   

                              

 

                                     

NO JOKING!!!

Long ago I went to China with a friend who was adopting a little girl.  China was fantastic.  The locals we met were talented, hard-working, and friendly.  We enjoyed seeing the sights and checking out local cuisine.  We soon learned, however, that while the police were welcoming and helpful, we needed to avoid Chinese soldiers. It seemed that they didn’t want us there.

On our last day in China, our guide took us to the U.S. embassy to fill out some papers before our flight.  I was homesick and was a little frazzled by that point.   As we got out of the car, I was concerned to see a group of Chinese soldiers approaching us.  The guide explained that they had to search us before we went into the embassy. 

Frustrated, I whispered to my companion, “I hope they don’t find the revolver in my purse.”  Apparently Chinese soldiers have acute hearing and speak English.  As they swarmed me and my purse, our guide panicked and repeatedly said, “NO JOKING!!!”  Finding nothing of interest in the purse, the soldiers angrily sent us on our way.  Other comedians have not been so lucky.

In 1986, Trygve Bauge took his mother to the Denver airport where she was scheduled to fly to Norway.  When the agent saw two people but only one ticket, she asked how many were traveling on the flight.  Bauge answered that his mother was the passenger and that he was only there to “hijack the plane.”  The agent warned Bauge that it was dangerous to make jokes in an airport, but he exclaimed, “This is a free county, and as a member of the Libertarian political party” he believed in freedom of speech. 

When the police arrived, Bauge refused to answer any questions without his lawyer being present.  He ordered the police to advise him of his Miranda rights.  Frustrated, they arrested Bauge and threw him in a holding cell. 

While locked up, Bauge “penned a list of grievances against the police.”  When they came to transport him to the local jail, he insisted on reading this “legal notification” to them.  They responded by confiscating Bauge’s pencil and paper.  They kept him under lock and key for ten days. They also reported him to the FBI and the Immigration and Naturalization Service.  INS confined him for another four days.  A federal lawsuit ensued.

Among other arguments, Bauge reminded that court that in 1984, Ronald Reagan jokingly told folks, “We have outlawed Russia forever.  We begin bombing in five minutes.”  How could the President get away with joking about a nuclear bomb while Bauge ended up in jail for joking about a hijacking?

He also pointed out that lots of folks know someone named “Jack.”  He asked, “If you were to greet him with ‘Hi, Jack’ would they call out the SWAT team?”

When these arguments fell on deaf ears, Bauge claimed that he had received rough treatment because he was Norwegian.  The Court responded, “I have never heard of, and – aside from a modest aversion to Greig or a bad experience in the Winter Olympics – can conceive of no basis for, racially based antipathy towards Norwegians. . . I find the idea that the Denver City Police Department is seething with officers bearing a grudge against Norway, fanciful in the extreme.”  The Court tossed Bauge’s claim.  A few years later, INS deported him to Norway.

Bauge is one of many people who learned that joking in airports can be dangerous.  In 2014, a physician made a comment about carrying a bomb.  The airport closed down, a bomb squad came in, and the doctor was fined $90,000. 

As for me, I have learned that joking with authority figures can be dangerous.  When I see my friend “Jack” in the airport, I’m careful to say, “Hello, Jack.”  I’ve even warned my sons, whose last names are “Solberg,” to never listen to Greig or even ABBA when they are anywhere near Denver.  After all, one can’t be too careful.