Todd Purdum in Vanity Fair:

[I]t’s an interesting thought experiment to imagine what the first two years of a McCain-Palin partnership in the White House might have produced. There would probably have been no stimulus bill, and the country’s economic condition would be no better (and probably worse). General Motors and Chrysler would have been allowed to go bankrupt rather than helped to emerge into a state of healthiness, as they may well be doing. There would have been no significant new regulation of the financial industry. The Bush tax cuts for those Americans with the highest incomes—something McCain had opposed before reversing himself—would have been extended. There would have been only modest health-insurance reform, at best—McCain’s proposals were Republican boilerplate and meant for use in the campaign, never a serious program. Perhaps there would have been greater progress on immigration, though McCain had already abandoned that issue, and it’s easier to imagine his taking the more nativist stance he has since adopted. There would be no Supreme Court justices Kagan and Sotomayor, but there would likely be two more conservative justices, and the days of Roe v. Wade would be numbered. There would be no troop drawdown in Iraq. The United States might well have bombed or blockaded Iran in response to that country’s flawed election last year, or in response to its nuclear program. There would have been serial feuds between aides to the president and vice president, but the fact that Vice President Palin had an independent power base, far larger and more enthusiastic than McCain’s own, would have limited what President McCain could do about it. The “Ground Zero mosque” dispute would probably have arisen anyway, and McCain might have been hard put to do anything but side with the opponents. The Palin-family soap opera would now be daily fodder for the national press rather than mainly the tabloids.

In that the Republicans/Tea Partiers are trying to regain congressional power by blasting the current Administration, it's valid and important to consider where the country would be had McCain won the election in 2008. Based just on Chrysler and GM going under and the resulting massive additional unemployment, we'd be in even worse shape. A McCain win would have meant Bush redux; with the country sliding down the recession slope at an ever-increasing pace back in late 2008, a McCain administration likely would have continued the descent, at a terrible cost to even more Americans.

Another thought: I am not, and have never been, a particular supporter for the Obama Administration. However, I have been saying for years that what we need are statesmen: public servants who have the courage of their convictions, even in the face of powerful opposition. In that context, the Administration and the congressional Democrats who have cast supporting votes -- even at the potential cost of their jobs -- have been acting like statesmen. We should remember that.

Man shoots couch during dispute: Guns don't kill people; stupid people kill people.

Are the couch's injuries life-threatening?

Study: Health reform will save Tennesseans $2.7B. Gee, I thought that health care law spelled the end of life as we know it.

E.J. Dionne, Jr.:

The country doesn't need this class war, and it is irrational in any case. Practically no one, least of all Obama, is questioning the basics of the market system or proposing anything more than somewhat tighter economic regulations—after the biggest financial collapse since the Great Depression—and rather modest tax increases on the wealthy.

But even these steps are apparently too much for those financing all the television ads, which should lead voters to ask themselves: Who is paying for this? What do they really want? And who gave them the right to buy an election?

Why, the Supreme Court did.

Mississippi Judge Jails Lawyer for Refusing to Recite Pledge of Allegiance. Here is the Contempt Order, too.

What blows me away is that, in this day and age, such nonsense still happens. Being able to refuse to recite a pledge of allegiance is fundamental to our constitutional liberties. Props to this attorney, who is willing to go to jail to protect this basic right.

And by the way, this issue was decided by the Supreme Court back in 1943: "'[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.' West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). A state therefore may not compel any person to recite the Pledge of Allegiance to the flag." Sherman v. Community Consol. School Dist. 21 of Wheeling Tp., 980 F.2d 437 (7th Cir. 1992).

Requiring the lawyer to recite the Pledge upon pain of contempt and jailing is a clear violation of well-settled constitutional law. The Mississippi Chancellor should know better.

Well, I never thought I'd see this: Some in G.O.P. Find Soft Spot for Bill Clinton. I don't know. As a consistent Clinton supporter during his Administrations, I can still remember quite easily the Republican vitriol manifested by such memories as the Lewinsky/impeachment charade, Whitewater, Paula What's-her-name, and the "Don't Blame Me, I Voted for Bush" bumper stickers. Now, if this article suggests a Republican desire for governance from the middle, well, that would be news.

The spate of Obama Administration reform initiatives made political sense to the Administration; it is accepted wisdom that, if you don't get your legislative agenda done within the first year or so of an administration, then it won't get done at all, because of mid-term elections and then the the presidential re-election campaign. But I am reminded of Hal Holbrook's line from All the President's Men: "You build from the outer edges and you go step by step. If you shoot too high and miss, then everybody feels more secure."

In other words, while politically difficult, if not impossible, gradual reform is better than sudden and profound change. So, while legislation such as health care reform may be societally or philosophically laudable, such intitiatives may well be politically damaging or downright suicidal. While I take no real position on such legislation, there used to be a word for doing the right thing at the risk of one's personal interests: statesmanship.

Shooting themselves in the foot: It's not enough that all these lenders are foreclosing on homes and ruining their borrowers' lives. It's not enough that they can't get out of their own way long enough to effectively process loan modifications, for which they have received (a lot of) federal money. Now, these same lenders have screwed up the foreclosure paperwork so badly that many of them are suspending their foreclosure sales, putting yet another category of would-be homeowner into potential eternal limbo.

Can you imagine how much worse it would be if there were no government regulation at all?

Co-counsel every lawyer needs: Superboy. And Superman.

Hmm. I wonder whether the judge would consider his uniform inappropriate courtroom attire?

A La Carte Government in action? Fire Department allows house to burn because resident had failed to pay $75 subscription fee.

Yeah, I know he didn't pay the fee -- he says he forgot to do it -- but it seems awfully heartless to literally stand by, watch the guy's house burn (killing three pets inside, by the way) and only swing into action to prevent the fire from spreading to a paid-up neighbor's house. What if people had been inside? Would the fire department still have refused to take action?

This sounds encouraging: New Israeli treatment kills HIV cells.

Cutting off your nose to spite your face: Some 25,000 Palestinians at work building Jewish settlements. Here's what's important, according a one worker on these jobs: "We have lived with Israelis and we will have to live together in the future. I'm pleased that I will be able to make a living,"

Exactly.

Photoshop magic:

Before:








And After:










This photo is from a rebreather dive Glenn Reynolds and I did in 2006, off Cobalt Coast in Grand Cayman. Glenn's wrote and videoed about it in Popular Mechanics. Guess who the photographer/videographer was? The intrepid diver is Nat Robb of InDepth Watersports in Grand Cayman. To learn how to do it yourself, see this YouTube video.

Just, uh, unearthed: In the year 3000, remembering the Beatles: John, Paul, Greg, and Scottie (Pippin). What they were best known for? Their seminal album, "Sgt. Pet Sounds and the Spiders From Aja." This is important history, folks. Pay attention!

Gotta get that record....

Glenn Reynolds links to this naive and somewhat misleading article by Larry Ribstein about "the growing problem of poor people facing civil cases without lawyers...." The article refers to one example of a Florida resident seeking worker's compensation benefits by using a non-lawyer representative or advocate in court. The Florida Bar is seeking penalties from the non-lawyer for unauthorized practice of law. The article apparently considers this situation as an example of "the disgrace of the legal services market."

As a Tennessee lawyer, I can say that there are plenty of lawyers who would have taken that Florida resident's case, if it had been in Tennessee. And the premise of the article -- that hourly fees of $150 and greater is beyond the reach of most people -- doesn't even apply to many civil legal actions, including worker's compensation. In many types of civil cases it is just flat wrong to suggest that lower income people (or anyone else, for that matter) can't hire a lawyer unless they've got big bucks for an up front retainer. What I'm talking about is contingent fees.

As opposed to many lawyers, most trial lawyers don't charge a client up front for many types of legal matters. In personal injury, worker's compensation and Social Security Disability cases, we here at Slovis, Rutherford & Weinstein essentially never charge cash on the barrel head, nor do we ask for any kind of expense or cost deposit, if the client can't afford it. Thus, in the great majority of such cases, a client will get the legal services they need, and will pay an attorney's fee and expense reimbursement only if the lawyer gets a recovery for the client.

Now, sometimes a lawyer who doesn't want to be mean and tell a potential client there's no case will quote a high fee as a "nice" way of sending the client off to another lawyer. I don't favor that practice, but I acknowledge that it has happened and does happen, from time to time.

It is also true that there are types of civil legal issues where lawyers must charge a retainer and/or hourly fee if they are to be paid at all. Besides legal aid, there are many lawyers that do cases pro bono, or free, as a way of giving back. There are also a lot of young, hungry lawyers who may take the case for a discounted fee. The persistent person is going to find a lawyer.

Mr. Ribstein proposes "the development of a legal information market that can serve the millions of people who now have little recourse but self-help. Such a market would give the middle and lower-middle class ready access to paralegals trained to handle lower-level cases and expanded legal offerings of legal software and forms." Mr. Ribstein, an academic and law professor whose biography reflects a background in "corporate, securities and partnership law, constitutional law, bankruptcy, film, the internet, family law, professional ethics and licensing, uniform laws, choice of law, and jurisdictional competition," badly underestimates the difficulty and complexity of non-lawyers trying to be effective (i.e., successful) representing themselves in court and most legal matters. He also gives entirely too much credit to paralegals who have very uneven levels of education and experience, as well as "legal software and forms" that often do not even apply in a particular jurisdiction. Reliance on such resources can lead to disaster -- and more legal expense -- for the client.

As an example, I had a client a couple of years ago who downloaded and used for an elderly and infirm relative a power of attorney form he found on the Internet. Unfortunately, it was not a durable power of attorney. That means that if the elderly subject of the POA is at some later time found to be not competent, then the power of attorney, at that time, becomes of no force. Which is, of course, exactly what happened to that client. Property conveyances to the client under the POA were disputed and voided. Two years later, he has incurred thousands of dollars in legal fees to try to obtain the property he thought he already owned. All of his troubles could have been avoided had he used a lawyer to prepare the power of attorney. I usually charge under $100 for one. You do the math.

The reason lawyers have to be trained, pass the bar exam, and be admitted to practice is that our society believes that legal representatives ought to be, well, qualified. Licensing laws are not in place to protect lawyers' jobs; they are there to protect the public.

I have no problem whatsoever in people having access to legal forms and information if they want to represent themselves. The strong likelihood is that they will not be successful in any litigation where they have to face off against an trained, experienced lawyer. But if they want to take that chance with eyes open, have at it.

I do have a big problem with untrained, un-experienced lay people representing litigants, however. No reasonable client wants to place his faith in a legal "representative" who is unqualified to represent him.

An interesting case from the Tennessee Supreme Court. In the Tennessee medical malpractice statute, plaintiffs are prohibited from telling the jury how much they are asking for. This prohibition is usually interpreted as forbidding the plaintiff even from stating in the Complaint's (the initial lawsuit filing) ad damnum clause the amount sought.

Now, the Court has clarified how far this bar goes. Justice Sharon Lee said this:

We do not find sections 29-26-117 and 20-9-304 to be in conflict. Interpreted in accordance with the clear and unambiguous language of each section, the statutory scheme allows a plaintiff to argue or suggest a monetary value to be placed on non-economic damages such as pain and suffering and to make an argument concerning the ultimate monetary worth of his or her action, but precludes either party from disclosing the amount of the ad damnum clause in the plaintiff's complaint.

I've never quite understood why, of all the different kinds of lawsuits, it's only in malpractice cases that we cannot tell the jury what we are asking for. I've always assumed that the strength of the medical lobby is behind this law, which sets apart doctors and hospitals from other kinds of potential wrongdoers.

In any event, this case, for all intents and purposes, allows plaintiffs to tell the jury what they think the case is worth -- just not the specific sum of what was asked for in the complaint. I presume that we can tell the jury what we think the value of the case is even if it's the same as what's in the complaint, as long as we don't tell the jury that the amounts are the same.

It's interesting that the Court seems to validate putting the amount sought in the complaint, which we have previously thought was not allowed. This case is a victory for injured victims of medical negligence.

Here's the full opinion from the Court.

Here's a 9 minute animated movie explaining the Health Care reform package pretty well.

Of Counsel lawyer Brett D. Stokes has had a notable victory up in the Tennessee Court of Appeals.

Here are the basic facts: The matter is a divorce case where the Wife denied that the parties were married. The Husband and Wife were originally married in 1997 in Texas, and then returned to their residence in California shortly thereafter. In 2002 the parties were made aware that the Husband’s prior divorce was never actually granted. This law school exam set of facts led to the legal issues of: (1) whether the parties' 1997 marriage was legitimate under Texas and California law; and (2) whether the State of Tennessee would recognize the marriage?

The trial court agreed with the wife and held that -- despite the fact that the parties had not been married under Tennessee law -- the parties were never married, according to Tennessee law.

Brett appealed the case to the Court of Appeals, and prevailed in that Court. Congratulations to Brett!

Slovis, Rutherford & Weinstein will be at the Tennessee Valley Fair, in the Jacob Building, from September 10 through 19. We'll be in Booth 79. Take a look at our flyer. Come on out and say hello!

From the CBC:

Hamas, which does not recognize a place for a Jewish state in the predominantly Muslim Middle East, won Palestinian parliamentary elections in 2006 and overran Gaza in 2007, expelling forces loyal to Abbas. Before the Washington talks began, Hamas took responsibility for two drive-by shooting attacks in the West Bank that killed four Israelis and wounded two others, signalling that it cannot be ignored.

Actually, what it signals is that Hamas is a pack of terrorist murderers. It also signals that, even if the Israelis make grand concessions, the Palestinean side is so fragmented that no deal will be possible. Same as in 2000. Nothing ever changes with them....

Jonathan Chait correctly interprets this screen shot:

Everything you need to know about Fox News is captured in this screenshot: the American flags, the fear-mongering image in the upper-right corner, the blond anchor with a facial expression that somehow combines sneering with absolute terror.

She is cute, though....