JOEL BIEBER'S BLOG

Love or Money

     There is a picture that we circulated through the office, that gave us all a chuckle. It was a big guy(maybe topping 4 Bills) in his bathing suit. He was walking hand in hand with a runway model type. She was in an itty bitty, well, you get the picture. The caption of the photo was, "It must be a rich guy".

     I remember one literature assignment, in school, that required me to read O Henry's short story "Gift of the Magi". It was about a poor couple that was about to celebrate their wedding anniversary. The husband wanted to buy expensive combs, to give to his wife, so she could comb her long beautiful hair. His only worthwhile possession was his treasured gold watch. He sold it and bought the combs.

     His wife had no possessions but her beautiful, long flowing hair. She cut it off, to the detriment of her appearance, and sold it, so she could buy a gold chain for her husband's greatest treasure, his gold watch. They were both startled when they exchanged gifts, but they were also both keenly aware of each others sacrifice. It was a story of love.

     A controverisal topic in the news and now faced by every politician running for office is whether they support gay marriage. Currently, same sex marriage is legal in six states. In 1996, the Federal government enacted a law called the federal Defense of Marriage Act. The law denies federal recognition of same sex marriages and grants the rights to states, to also refuse to recognize same sex marriages, that were legally performed and recognized in other states.

     Today's NY Times is reporting that the Massachusetts Attorney General has filed suit against the Federal Government to overturn the portion of this Federal law, which denies federal benefits to partners, in same sex marriages. Nothing in the suit relates to trying to overturn the recognition of same sex marriages in the other 44 state, or to mandate such recognition through this federal law.

     Most of the rhetoric about same sex marriages relates to a person's right to marry the person that they choose. That such marriage should be based on love. No mention is ever made of any other side issue regarding the recognition of same sex marriages.

     This lawsuit gives us a view into the strategy behind the proponents of same sex marriage. This is no "Gift of the Magi" story. What such proponents want, is the ability to reach into the social security system, medicare and any other federal benefits. As this lawsuit indicates, it's really about the money.

     One final thought. If the Attorney General is successful, then such inclusion, by same sex partners will now be mathematically part of  the social security system and when it will run out of money. It's not just an issue, for politicians, that relates to constitutionality or morality; Another consideration in the passage of laws that recognize same sex marriages, must also include an eye toward the economics of such passage. 

  

      

              

Exxon Valdez Lessons for Today

     A little over a year ago, the US Supreme Court handed down a decision that reduced a punitive damage verdict against ExxonMobil. In 1994, ExxonMobil was ordered, by an Alaska jury, to pay 5 Billion in punitive damages, as a result of a drunken barge skipper who hit the rocks on Bligh Reef, in 1989, and dumped 11 million gallons of oil into Prince William Sound. It is estimated that the spill killed half a million sea birds, 5000 sea otters, over two dozen orcas and millions of Herring and Salmon eggs. An assessment of damage is still ongoing.

     With the confirmation of Judge Sonia Sotomayor expected to come before the Senate in August, (Hill) the topic of Judicial activism has been at the forefront. In addition, organizations like the Chamber of Commerce, Trial Lawyer organizations and Environmental groups, have been trying to figure out the kind of Justice that Sotomayor will make. What kind of influence will she have on the Court in her opinions and questioning.

     In the ExxonMobil Supreme Court case, a voice from the bench sounded much like judicial activism on the issue of punitive damages. As discussed by David Lebedoff,  the lawyer for the fishermen of Alaska, stood to argue against the appeal. He was prepared to eloquently argue against the request to set aside the punitive damage award, 

      Chief Justice John Roberts interrupted his beginning argument with the question, "So what can a corporation do to protect itself against punitive damage awards such as this?" The lawyer tried to answer with such responses that addressed the conduct of corporations, but Roberts kept bombarding him, per the transcript, with questions that indicated his opinion on the verdict. As Lebedoff remarked, while observing from his second row seat, the argument did not focus on the conduct of the corporation, the loss of livelihood of the fishermen or the wildlife and fish that were killed; Instead, it focused on the corporation's possible loss.

     By a 6-3 vote, the Court reduced the punitive amount to half of the original amount. The new figure represented about 12 hours of revenue for the oil company. Punitive damage verdicts are to punish the wrongdoer and also send a message to the community, that such conduct will not be tolerated. A 12 hour revenue punishment, is enough, according to Roberts. 

      In looking at the question of Judical activism, it is said in legal circles, that a Justice can be declared as such, when he or she knows that there are already 5 votes for the opinion. In this horrific spill, Justice Breyer wrote in the dissent, "The jury could have reasonably have believed that Exxon knowingly allowed a relapsed alcoholic repeatedly to pilot a vessel filled with millions of gallons of oil..... Given that conduct, it was only a matter of time before a crash or spill occurred." 

     One final random thought. Some tort reformers and corporate apologists try to direct the conversation of punitive damages, as though it is nothing but a creation of lawyers, to line their pockets. As one blogger cited, regarding this case, lawyers are nothing but a cancer on society. Those who want to focus on eliminating or reducing corporate accountability are probably at their country clubs today getting ready to tee off or finishing up a round. Hopefully, a great majority of America still thinks that wrong should be punished.       

"It's In The Game"

     If you've ever played a video game, you may have heard the signature of Electronic Arts (EA Sports). Every time that the Madden football game comes on, the low voiced announcer reminds us it's slogan. Normally, it's also a reminder that players like to  be identified in the game. NFL players even get a pretty good chunk of money from it and John Madden reportedly makes something like 30-40 million per year, just to have it named after him. Of course, initially he did help come up with the idea. Now, it's a good amount of money to help him in his newly retired status.

     It is unknown as to exactly how much profits that these games make for the manufacturers. Retired NFL players were not receiving anything, because their names were not being used in the legendary teams. Notwithstanding, the NFL retirees brought an action and were successful with a verdict of 28.1M , against the game manufacturer, which later settled for 26.25 million. That worked out to about 10-12k per retiree. The NFL coaches union even gets their piece of the action, When Bill Parcells was coaching the Dallas Cowboys, Madden Football could not use his name, because he refuses to join coaches union. So, while other coaches are identified, he is simply known as "Dallas Coach".

     All this background demonstrates that it is big money. Not surprisingly, the money issues have now seeped into the College game. As it stands, the money is going to the institutions and not the athletes. As a result, a college quarterback has filed suit against EA Sports. ( NY Times) He claims that the game is using his likeness without his permission. That's why I get to blog about a lawsuit, a game and sports!

     Former Arizona State quarterback, Sam Keller, now 24, has brought suit to receive a portion of the profits. EA Sports will probably use the defense that it is not using his likeness. That is the same defense that was used in the retiree lawsuit. However, in this instance, the NCAA is receiving funds and student athletes are prohibited from entering into separate endorsement deals. So, I suspect that EA Sports will also avail themselves of that defense.

     In the college football game, NCAA Football, Keller is not identified by name. However, it has his same number, jersey, skin tone, height, weight, hair color and even throws like him, as a pocket passer. There is a separate program on the internet, that game players can go to and download, that would then equip the uniforms with the player's name. Of course, EA Sports doesn't specifically put that in its game.

     The NCAA issued a statement that basically said that they don't think that there is any merit in Keller's suit. In the statement,  they failed to mention that gaming revenues provide the second highest stream of income from collegiate licensing deals, only behind apparel sales.

     This is a lawsuit about profits, using a person's likeness without permission or really, whether the NCAA basically owns a player's likeness, even when the game does not specifically use their name. A lawsuit that could impact other NCAA profit streams. The Newspaper went on to interview other college players, to see what they thought of Keller's suit. They agreed with the lawsuit but they went on to add that they didn't want anything to keep the games from being produced. Basically, a "pay us but let us play us".    

      

The Unexplainable Offer

     Some things just make you shake your head. For instance, I saw that the boss of Formula One racing came out with another one of his statements, according to reports (Fox Sports). Formula One boss Bernie Ecclestone came out with praise of Adolph Hitler, because Hitler knew how to get things done. Of course, this is the same man who previously had stated that all women should dress in white, to match other household appliances. Those kind of statements are just unexplainable.

     About a week ago, I was supposed to be in a jury trial in Hanover County, Virginia. The trial date was approximately one year after I had filed suit. Following the depositions of my client and the defendant, the opposing attorney had made the perfunctory statement, "why can't we get this thing settled?" I reminded her of the offer that had been made, before I had filed suit, and how little the insurance company had moved. She just shook her head.

     Well, I wouldn't be including this in a blog, of course, if the case had not settled. The insurance carrier made 4 additional moves of settlement. My client remained at his original number, plus the now additional litigation costs, that we had conveyed as a settlement offer, about the time that we filed suit. After some outrageous conduct on the insurance adjuster's part, and the defense attorney getting involved, the case did settle.

     We'll never know what a jury in Hanover would have done. My client almost decided to go forward and reject their final offer. For me, I felt like the horse that was put in the racing block.  A day before trial, everything was done, including blowups, exhibits, witness preparation and jury instructions. It was hard to back out of trial mode.

     I started this blog out with the concept of unexplainable offers. I am seeing more and more of them. As I have previously blogged, I am guessing that insurance companies are hoping to take advantage of difficulties that people are experiencing, with every day expenses. These adjusters, apparently, feel no remorse in making very low settlement offers, that they must know, are not fair. Why is that?

     I was watching a movie about the conduct of Enron officers. It was trying to offer an explanation as to why people would willingly participate in fraud. How were Enron traders feeling no remorse, and actually laughing about having grandmothers experiencing a loss of electricity. The tape recordings that have become available, show no remorse toward this conduct, and the movie showed video of a 1960's study of a social psychologist.

      Yale Professor, Stanley Milgram, recruited several volunteers to assist in helping evaluate testing methods of other "test subjects" that were behind a wall and unseen. However, the real test subjects were the volunteers. Click on the above attachment for the Wikipedia explanation. The study is a glimpse of human nature.

     The volunteer subjects were told to deliver electric shocks, to those behind the wall, who were supposedly tied up to chairs with electric wires. When shocks were delivered, these volunteers could heard screams on the other side of the panel. The person directing the experiment, in his authoritative white coat, would continue to urge the volunteers to deliver various levels of shocks,even though there was a potential of tremendous injury or death, if the shocks were administered. As long as the "white coat" insisted on continuing the administration of shocks, the volunteers would keep up the level of shocking, even when one of the "victims", on the other side of the panel, acted dead.

     The point of the study was that, as long as authority accepted responsibility, human behavior would conform to the instruction, despite the consequences. To quickly conclude, it is my opinion that many of these insurance adjusters are in the same mode of operation. Some person or computer program has instructed them to make unexplainable offers. Deep down, they have to know that such offers are unfair. Despite that, as many say to me, "I am just doing my job". They have no concern of responsibility or impact on those that were injured. Perhaps, if they read or watched this study, it would have some impact on them.              

July 1 Virginia Laws

     Typically, when the Virginia General Assembly enacts laws, such laws then go into effect on July 1. Sometimes, there is an exception to that, such as the restaurant smoking law. That goes into effect on December 1, to allow restaurants the extra time to install floor to ceiling panels, to truly create a smoking section that is set off from the rest of the restaurant. Otherwise, the restaurants will need to be smoke free.

     I am always very interested in laws that impact highways and driving. One such law is the texting law. You know how you feel as you tentatively pass that weaving car ahead of you. As you pull up next to it, you see a teenager looking down at something. Soon, you notice a cell phone and it dawns on you that that car is traveling at 65mph, with a texting driver. A bit unsettling.

     Well, the new texting law that went into effect is called a secondary law. That means that a policeman cannot stop a car, just because they see the driver texting. However, in conjunction with another reason to stop that vehicle, a driver can now be cited for texting while driving. If guilty, the first offense is a $20 and the second offense is $50.

     It seems like a law without teeth. Hard to believe when you think that a driver, traveling 60 mph, goes 88ft, every second. Considering that, it's hard to believe that there was any resistance in such passage and, I'd sure like to interview the 8 legislators that voted against it. Do you think that it had anything to do with cell phone companies not wanting the legislation? Hopefully, at least the news of this law will have some inertia in stopping this conduct of driving.

     There were several other laws regarding vehicles, that were enacted. Two such laws that went into effect involved drunk drivers and the various installations of ignition equipment. Also, now there are restrictions on scooters and mopeds not being able to travel like a car, in the middle of the lane, if they cannot travel at least 35mph.

     These new laws are all worth looking at. I'd encourage you to go to the Virginia General Assembly website to view them, but I'll try to address some of them in upcoming blogs. It wouldn't be good sales to drive you to a different website, would it? You can be assured that at this blog we'll keep the light on for you. Did someone else already use that?   

Really, 150 Years, Mr. Madoff!

     You know the old expression, "Other than that Mrs. Lincoln, how did you like the play?"  It made me wish that I could ask Bernie Madoff about his sentencing today. As a result, I thought I'd kick out a quick blog on the sentencing, based on various reports that I read. The Wall Street Journal did a good, quick synopsis from the Courthouse. The article also has some of the quotes from the Judge such as, "Mr Madoff's crimes were extraordinarily evil". I'm not so sure that there is any special Judicial insight there.

     I had been reading some speculation on what some thought, that the sentence would be, for this 71 year old criminal. Some suggested a possible 25 to 30 years. I had not seen one good reaction to Madoff's attorney trying to recommend that a fair sentence would be 12 years.

     I saw the Madoff's wife came out with her own statement today, about how bad she felt for the victims. I'm not sure that this will serve as any salve for those wounds. I guess she felt safe to speak, now that her husband has been sentenced and she worked out a deal with prosecutors, that allowed her to keep 2.5 million in cash.

     I suspect that some of the victims feel a certain amount of satisfaction, knowing that Madoff will be in jail the rest of his life. I would guess that true  wish would be to just get their money back; And, there may have been a few, rooting that he would be released soon, so they could assist in making sure that Madoff met justice face to face.

     Law.com offered a real time blog of the sentencing.  It was reported that the Courtroom erupted with applause, once the sentence of 150 years had been announced. Madoff spoke briefly by saying that, "Your honor, I cannot offer a single excuse for my behavior". It was an unusual hearing in that not one person offered a letter or testified in support of Madoff. He stood alone, without support, except for his attorney beside him.

     It makes you wonder how he will occupy himself in jail. He seems to be one who thrives on the thrill of stealing and misrepresentation. Will he set up some cigarette trading scandal in jail? Will he be in solitary confinement for the rest of his life? 

     One final comment. I assume there will be more revelations about this event. He obviously could not have carried it out with little or no help, for so long. The expressed surprise by his wife and family seems a bit disingenuous to me. I watched a program on PBS (Frontline) that I have attached to this blog. It does a good job in telling the story and interviewing investors and others who were financially involved. It makes me wonder, does he feel any remorse for the two people who committed suicide, as a result of his conduct. Surely, this is as clear of an example of Corporate murder as could ever exist.    

The Billy Mays News

     I just saw that Billy Mays died over the weekend. He is known as that pitchman that we started seeing, as he positively sold the product Oxyclean. Here's a Youtube commercial, as a reminder of the ads. (Billy Mays clip) His bio indicates that he initially did product sales, as a pitchman, at carnivals and fairs until he met the owner of Oxyclean and they forged an agreement, wherein he would become the face of the product. He then branched out with other products and was even featured on  "Pitchmen", on a recent Discovery Channel show.  

     The Associated Press reported that he was found by his wife, unresponsive, on Sunday morning. There is no suspected foul play. However, his wife did tell investigators that he went to bed early Saturday night, because he said that he wasn't feeling well. There is an autopsy scheduled.

     When someone dies at age 50, it could be for a multiple of reasons that include heart related issues. In the day that we live in, technology can also sometimes give us insight into a persons most recent thoughts. In this instance. Mays was registered on Twitter and here were some of his last "tweets".:

               "Just had a close call landing in Tampa. The tires blew out upon landing. Stuck in the plane on the runway. You can always count on US Air.12:01 PM Jun 27th from txt

Getting ready to fly back to Tampa from Philly. Monday is the big day (HIP REPLACEMENT NO.3) Keep you posted.7:40 AM Jun 27th from txt "

     He mentions a US Air flight. On Friday, he was landing in Tampa and according to MyFoxTampa.com, the front tires of the plane had blown out,causing a hard landing. When he got off the plane, he was interviewed by that local TV station and the attachment has now become his last TV interview. In the interview, he discusses how he was hit on the head from things out of the ceiling but that he joked about "having a hard head".

     I have filed this under the brain injury blog. Following the autopsy today, we will know if he suffered a head injury such as a hematoma. If so, such an injury would be reminiscent of the Natasha Richardson skiing accident. Unfortunately, as is many times the case, head injuries are initially not diagnosed. My experience with client claims in looking at their medical records, is that the Emergency Techs, at the scene, rarely ever indicate a head injury, unless the person is comatose.

      Even if they are complaining of a headache and having hit their head, it doesn't seem to make the Emergency crew treat such as life threatening. The Brain Injury Association of America is trying to get the word out. Hopefully, medical professionals will become more aware of such possibilities.     

  

Where You Were

     I had just finished dinner and was walking upstairs to my home office. I stopped to make coffee, to be set for the morning brew. Then, I reached for my phone to check any messages and emails. At that moment, I exclaimed to my wife, "Michael Jackson is dead". 

     I was very young when President John F. Kennedy was shot. However, growing up, I  heard the expression from many that they would never forget where they were, when they heard the news of the President's shooting. There are many events in my life, that I remember where I was, and when it happened. Some memories are very positive, and some very negative. many are news related, rather than personal, but the news seemed very personal.

     I remember the TV cutting in on a white bronco, as OJ Simpson traveled down the highway on that June night, in 1994.  I remember walking up to an apartment door, in Pennsylvania, and hearing through the door that John F Kennedy, Jr., had reportedly been in a plane crash.  I remember walking by my conference room, and looking in on a TV set, as it was covering an inexplicable plane crash in New York City, on that fateful September 11.

     I remember my Grandfather standing at the front of his church, during an invitation song, and that even though I was very young, I knew that I wanted to go to heaven and that I needed a Savior; that I wasn't going there on my own. I remember my mom calling me at my Virginia Beach apartment, to tell me that there was a letter there from the Virginia Board of Bar examiners, and did I want her to open it, and read it to me. A few moments later, I knew I was a lawyer. I remember my wife calling me, as I was just standing up to go to the salad bar at Golden Corral. She had just been tested to see if she was a kidney match. Her first words were, "I'm your donor".   

     Life is full of memories, both good and bad. However, when the body slows and you'd rather just sit on the porch and feel the breeze, instead of jumping in the car and racing to an outdoor basketball court, it's those memories that are still with you and can't be taken away.

     I have filed this under the brain injury law category, because I handle many of those cases. I see people who have suffered amnesia, memory loss and have continual problems with forgetfulness. Their families suffer from these "walking wounded". They have suffered these damages from such things as hitting their head in a car crash. They are brain injury survivors. They take medication and they go to therapy and they develop techniques to deal with their loss of memory.

     Even as a write this  blog, it took me down memory lane.But for space, I could have included many. When I think about each memory, I can remember such vivid details surrounding them. I'm glad to have those memories. It helps to remind me of the difficulties that my brain injury clients and their families encounter each day.    

    

      

Joshua and Caleb

     The Old Testament story of Joshua and Caleb is a reminder of seeing the positive instead of the negative. Here's a quick summary of events: Moses sent twelve spies into Canaan, the promised land of the Israelites. They were in the wilderness, after fleeing captivity from Egypt. The twelve spies came back and 10 reported their fears of the giants and that the Israelites should not go into the land. A report of failure.

     Joshua and Caleb came back with reports of tremendous food and excitement of the benefits of the land. These two saw a completely different land. It was a real dichotomy of positive and negative. These 12 representatives of Israel came back with reports that statistically showed that if it were a political poll, that a little over 83% said not to go while the small minority of  2,  about 16%, said "the land flows with milk and honey!" In Numbers chapter 10, Caleb says to Moses, "Let us go up at once and occupy it, for we are well able to overcome it".

     This story and what happened to Israel in listening to the negative representatives, instead of Joshua and Caleb, is  a great lesson in many areas. There have been multitudes of books that have been written on the benefits of surrounding yourself with positive people, as well as the benefits of positive thinking. In addition, this is a reminder that it's not always beneficial to follow the herd. 

     I like this story, as it relates to legal representation. I regularly hear prospective clients tell me, as they are describing their potential claim, that they have called other lawyers, but "no one will take my case", I guess that gets my competitive nature going, and causes me to listen very closely, to see if I think that the caller has a case. 

     A few years back, one such case involved an injury at an apartment complex. The client had fallen over a handicap sign that was laying in the grass. Ucontradicted, was the fact that in the dark, the sign could not be seen. Other lawyers had apparently not taken the case because the fact that an injury had occurred does not mean that anyone is at fault. The defense to the case was that the complex did not know that the sign was on the ground.

     Rightfully so, there is no duty to constantly drive around the complex every hour. However, after investigating the case, evidence was found that the sign was repeatedly displaced from its location and was hidden in the grass. For a cost of about $80 dollars, the complex could have secured the sign. For a much greater expense, the complex ended up paying my client for the injuries. They ignored the known danger.

     A few weeks ago, another client relayed a similar story that involved a fall at a restaurant. Most falls are not the result of any wrongdoing. Or, sometimes the person who fell should have seen what could be described legally as "an open and obvious condition". For this case, in our investigation, we talked to a security guard that was there. The fall  was over a year ago but the guard advised that she had not been contacted by anyone else. In short, soon, I will be making a demand for settlement. Now, based on the unbiased witness, I don't think that liability is an issue.

     Before I break my arm while patting myself on the back, I should hasten to add that both these stories are a reminder to me, as well. I need to make sure to look closely and not just gloss over. It's easy to see the negative. It takes work to see the positive. When insurance companies are denying claims, it's real easy for a person to think that it's not worth it to call a lawyer, to see if they have a claim. Most people, I talk to, will go out of their way to not be viewed as filing something frivolous.

     The name "Caleb" I'm told, has a similar Hebrew spelling as the word "dog". In those days, your name had meaning. Imagine, as a child, that his friends would laugh at their friend "dog". That wasn't a very positive reinforcement for a great future. Notwithstanding, in Numbers 14:24, Caleb is called "my servant" by God. Such a description or position of honor had only previously been designated to Moses. Caleb could have been in the majority but he chose a different path, a different viewpoint. As a result, he was rewarded for his perseverance. He is an example of the representation that we should all want and strive for.     

      

A Legal Quickie

     I have a lot to blog about but have been scrambling with litigation things. Plus, it probably looks rude to blog during a deposition and during trial, well, you know that's out. There is plenty to talk about in the world of law but I thought I would mention a lawsuit involving the Transportation Security Administration. Normally, when you walk throught that horrid line, balancing containers and shoes, you don't feel as though the scales are fair. If you want to get through, you take off the belt, when they say; you remove the sweater and, if need be, you go through again.

     Maybe one screener went to far. In March of 2009, a traveler went through the screening and put $4700 in cash, in the security Xray machine. As a result, he was detained in a small room, interrogated and detained for over 30 minutes. (PR Newswire) As director of development for the Campaign of Liberty, he was carrying money that was raised in conjunction with a Ron Paul for President event.  

     Now, the American Civil Liberties Union has filed suit, alleging an unlawful search. Of course, this will be one to watch because the TSA has basically, under the premise of homeland security, been able to stop and search for whatever apparent basis they deem. Some would say that they should be allowed to continue operations as they exist; Others would say that power unchecked is a problem. A good two- sided issue.